EEOC Declares LGBT Discrimination to Be Sex Discrimination

On July 16, 2015 the U.S. Equal Employment Opportunity Commission (EEOC or the Agency) issued a groundbreaking decision in favor of LGBT rights. According to the Agency, employers who discriminate against LGBT workers violate Title VII of the 1964 Civil Rights Act by discriminating on the basis of sex.

Why It Is Sex Discrimination

Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on, “race, color, religion, sex and national origin.” In the ruling, the EEOC found that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”

The Agency uses several examples to clarify how this is so. For instance, if a female employee is discriminated against for displaying a photo of her wife, but a male employee is not discriminated against for showing a photo of his wife, the female employee “can allege that her employer took an adverse action against her that the employer would not have taken had she been male.” In effect, the lesbian employee in that example would have a legitimate claim under Title VII because her sex was unlawfully taken into consideration when making the decision to terminate. Put more simply, the employer’s decision would not pass muster because the employer would be unable to show that it would have treated employees the same regardless of their sex.

The EEOC also concluded that sexual orientation discrimination falls under associational discrimination based on sex – meaning that an employer took an employee’s “sex into account by treating him or her differently for associating with a person of the same sex.” In reaching this conclusion, the EEOC relied upon precedent in which courts have consistently ruled that discriminating against employees in interracial relationships, marriages, and friendships are protected from discrimination based on their association with a person of another race. To that end, the EEOC concluded that Title VII’s associational protections apply as equally to sex as they do to race, color, religion, and national origin.

If you have been the victim of sexual orientation discrimination on-the-job or when applying for a job, please call the New Jersey employment attorneys of Lenzo & Reis, LLC, at (973) 845-9922 or email us today for a free case evaluation.