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The Modern Workplace

EEOC Continues Strategic Enforcement Focus on LGBT Rights
The EEOCs current strategic plan includes, as an enforcement priority, a focus on the employment rights of lesbian, gay, bisexual and transgender (LGBT) individuals. On the heels of prior EEOC rulings and lawsuits aimed at expanding LGBT workplace protections, the EEOC recently issued a lengthy opinion on July 16, 2015, in which it concluded that Title VII prohibits sexual orientation discrimination. While the decision involved a federal government employer, the ruling has practical implications for private employers that are required to comply with Title VII. The decision is significant because, while same-sex marriage is now legal following a recent U.S. Supreme Court decision, there is no federal law that expressly prohibits discrimination on basis of sexual orientation in other contexts such as employment, housing, or lending.
 
While admitting that the language of Title VII does not specifically extend to sexual orientation, the EEOC concluded that sexual orientation is inherently a sex-based consideration, and sex discrimination is illegal under Title VII. The EEOC relied on three grounds in ruling that a claim of sexual orientation discrimination is necessarily a  claim of sex discrimination. Those grounds are:
  1. That sex and sexual orientation are inseparable. For example, if a female employee is reprimanded for having a picture on her desk of her female spouse, but a male employee is not reprimanded for having a picture of his female spouse on his desk, the female employee has been discriminated against because of her sex.
  2. That sexual orientation claimants are asserting prohibited associational discrimination. Historically, courts have held that Title VII prohibits discrimination based on an employees association with a member of a protected class. The EEOC held that the same logic applies to claims of discrimination based on sexual orientation. If a gay man is fired because he dates men, it is the fact the he is a man instead of a woman (his sex) that motivated the discrimination against him.
  3. That sexual orientation discrimination is often based on gender stereotypes, which is also prohibited. Both the EEOC and the courts have held that Title VII applies to disparate treatment resulting from gender stereotypes. The EEOC explained that discrimination based on sexual orientation is no different because it stems the desire to enforce heterosexually defined gender norms. The EEOC has used this same reasoning to hold that gender identity discrimination against transgender individuals is illegal gender stereotyping prohibited by Title VII.
While the EEOCs recent ruling is not binding on the federal or state courts, it clearly signals that the EEOC itself will continue to accept and investigate charges of LGBT discrimination under Title VII. In addition, it will no longer be possible to get an EEOC charge dismissed based on the argument that Title VII does not protect sexual orientation or gender identity. Whether the EEOC interpretation of the law will be widely adopted by the courts is an open question, but a number of federal courts have issued rulings in the transgender context that adopt the EEOCs reasoning.
 
In Minnesota, discrimination based on sexual orientation is expressly prohibited under state law and, as a result, most employers have appropriately adjusted their policies and taken steps to prevent such discrimination in the workplace. For Minnesota employers, the EEOCs decision now means that an employees charge of discrimination could also be brought under federal law, with its somewhat expanded damage options. Non-Minnesota employers should review their policies, procedures, and benefits in order to avoid a potential legal claim.
 
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