On October 9th, the Equal Employment Opportunity Commission (“EEOC”) filed an amicus brief with the Seventh Circuit Court of Appeals in Chicago seeking reconsideration of the court’s decision to affirm the dismissal of a plaintiff’s sexual orientation discrimination/harassment claim under Title VII of the Civil Rights Act of 1964. The court had dismissed the plaintiff’s Title VII claim because Title VII prohibits sex/gender discrimination, not sexual-orientation discrimination. The EEOC is arguing that Title VII prohibits sexual orientation discrimination when the discrimination is “grounded in sex-based norms, preferences, expectations, or stereotypes.” In arguing for its expansive interpretation of Title VII, the EEOC explains in its brief that “[p]urposeful discrimination against straight, gay, lesbian or bi-sexual people may often be animated by stereotypes about sex-specific roles related to sexual relations and/or romantic relationships.”
The day after filing this amicus brief, an EEOC representative explained at a Title VII symposium that the EEOC’s filing “lays out…the broad view of the gender-stereotyping theory” that the EEOC has developed in federal sector cases and will now presumably seek to enforce in private sector cases. This new emphasis by the EEOC on sexual orientation/identity discrimination also was evident in two September 2014 lawsuits filed by the EEOC on behalf of private sector, transgender employees.
Private sector employers should expect the EEOC to now prioritize accepting and pursuing charges of discrimination on the basis of sexual orientation. Employers should take into account the EEOC’s expansive view of Title VII’s prohibition of sex/gender discrimination with respect to all current policies, practices, and workplace decisions.