EEOC Files Its First Lawsuits Alleging Discrimination Based on Sexual OrientationThe Equal Employment Opportunity Commission (EEOC) has made it official—it will file lawsuits under Title VII based on sexual orientation discrimination. On March 1, 2016 the EEOC filed two federal lawsuits alleging that employers permitted hostile work environments because of sexual orientation and retaliated against those employees for complaining about the alleged harassment.

In EEOC v. Scott Medical Health Center, filed in the Western District of Pennsylvania, the EEOC alleges that a male employee was harassed, retaliated against, and constructively discharged because he is gay. According to the complaint, the employee’s manager frequently referred to the employee using anti-gay slurs and epithets and made other highly offensive comments about the employee’s sexuality and sex life. The EEOC claims that when the employee complained about the harassment, nothing was done. Ultimately, the employee quit, allegedly because of the harassment.

Nearby in the Baltimore Division of the District of Maryland, the EEOC filed a case against Pallet Companies d/b/a IFCO Systems NA alleging that a female employee was harassed because she is a lesbian and fired because she complained about the harassment. The female employee claims that her supervisor made numerous offensive comments about her sexual orientation, including “I want to turn you back into a woman.” She also claims that the supervisor blew a kiss at her and made a suggestive gesture with his tongue.

Both lawsuits seek relief under Title VII, however, the plain language of Title VII only prohibits discrimination in employment based on an employee’s race, color, religion, sex, or national origin.  Sexual orientation is not explicitly included.

Although members of the U.S. Congress have proposed amendments to extend Title VII’s protections to include sexual orientation, none of those amendments have been signed into law. Furthermore, courts have consistently rejected arguments made by employee plaintiffs that Title VII’s protections extend to an employee’s sexual orientation. See, e.g., Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) (“The law is well-settled in this circuit and in all others to have reached the question that [Plaintiff] has no cause of action under Title VII because Title VII does not prohibit harassment or discrimination because of sexual orientation.”); Evans v. Georgia Regional Hospital, 2015 WL 5316694 (S.D. Ga. Sept. 10, 2015) (“Although the Eleventh Circuit has not addressed this issue, every court that has done so has found that Title VII . . . was not intended to cover discrimination against homosexuals.”). In the last year, the EEOC and other federal agencies have made clear that they interpret Title VII’s prohibition of sex discrimination to extend to discrimination based on a person’s sexual orientation.

Refusing to wait on Congress to act or for the courts to accept its argument that discrimination based on sexual orientation is sex discrimination, the EEOC is marching forward by filing lawsuits. Only time (and the ensuing judicial opinions) will tell whether the EEOC’s interpretation is correct and whether an employee’s sexual orientation will be recognized as a protected characteristic under Title VII. In the meantime, employers wishing to avoid being the EEOC’s next target may want to address complaints of sexual orientation discrimination under their harassment policies.