Just a few days ago Alex Galvan posted  about the U.S. Equal Employment Opportunity Commission’s (EEOC) mission to expand Title VII’s protections to LGBT employees. As if on cue, the EEOC has now taken another next step towards completing its mission.  Last week, in a 3-2 decision, the EEOC held that Title VII prohibits employers from treating an applicant or employee differently on the basis of their sexual orientation because “sexual orientation is inseparable from an inescapably linked to sex” and as a result “[s]exual orientation discrimination is sex discrimination.” 

The key distinction between this decision and earlier decisions issued by the EEOC, addressed in Alex’s post, is that this decision does not limit sexual orientation discrimination claims solely to allegations of gender or sex stereotyping. Instead, all a complainant will need to allege now is that the employer relied on “sex based considerations” or took “gender into account” when taking an adverse employment action.

Employer Implications:

• Because the complainant in this case was a federal employee, the EEOC’s decision is binding on federal agencies.

• Although this decision is not binding on federal courts, it can be cited and relied upon as persuasive authority. Expect plaintiffs to rely heavily upon its analysis in charges and litigation alleging sexual orientation discrimination.

• Even if courts do not adopt the EEOC’s analysis, we can still expect an uptick in charges filed with the EEOC as well as cases brought by the EEOC against employers. It may be necessary for employers to update trainings and review employee handbooks in an effort to prevent and limit claims.

• The decision will likely have no impact in jurisdictions where sexual orientation is already prohibited by law or where the court has interpreted Title VII as prohibiting discrimination on the basis of sexual orientation.