The EEOC has confirmed its position that Title VII prohibits discrimination against employees based on sexual orientation. The EEOC’s statement followed on its prior determination that Title VII protects individuals against discrimination based on transgender status, gender identity, and an employee’s transitioning between genders. According to the EEOC, sexual orientation bias is “associational discrimination on the basis of sex.” Thus, employees who work for an employer with 15 or more employees can file a charge of sex discrimination with the EEOC if the employee has been discriminated against because of sexual orientation or gender identity or expression.
Notwithstanding the EEOC’s position, there is still no federal law that explicitly protects individuals from employment discrimination based on sexual orientation and gender identity. However, 22 states (including Illinois), Washington, D.C., and Puerto Rico, have state-based employment nondiscrimination laws that cover sexual orientation and/or gender identity that apply to both private and public sector employers.
With so much recent attention, employers should be particularly attentive to issues relating to sexual orientation and gender identity. We suggest updating any employment policies and practices to include prohibitions on discrimination and harassment based on sexual orientation and gender identity to help protect employers against EEOC and state-law challenges.