Everyone knows about the recent Supreme Court decision Obergefell v. Hodges with regard to gay marriage. Last year, President Obama entered an Executive Order prohibiting federal contractors from discriminating on the basis of gender identity and sexual orientation. In recent years, there has been a gradual acceptance that discrimination against transgender individuals constitutes discrimination on the basis of sex prohibited under federal law Title VII of the Civil Rights Act of 1964. Now, for the first time, EEOC (Equal Employment Opportunity Commission), the federal agency charged with enforcing discrimination laws, held in a July 15, 2015 decision that discrimination on the basis of sexual orientation necessarily involves discrimination on the basis of sex and is unlawful under Title VII.
The significance of this decision is that employers cannot rely on the fact that Congress never added “sexual orientation” as a protected class to federal anti-discrimination laws which expressly name race, color, religion, sex and national origin as bases for protection. Sexual orientation discrimination is now a subset of sex discrimination.
In reviewing the many claims of discrimination on the basis of sexual orientation, courts have consistently held that Title VII does not prohibit sexual orientation discrimination. However, discrimination on the basis of what is referred to as “gender stereotyping” has been recognized, most notably in the 1989 Supreme Court decision in Price Waterhouse v. Hopkins. There, the plaintiff claimed that she was denied a promotion because her employer found that her actions and conduct were not sufficiently feminine. The Court upheld her claim, stating that Title VII applied to discrimination because of gender, not just biological sex.