EEOC Relies on Supreme Court Decision to Ban Sexual Orientation Discrimination By on October 05, 2015

In July, the Equal Employment Opportunity Commission  issued a decision in a federal government discrimination case in which it was stated that discrimination based on sexual orientation is a violation of Title VII of the Civil Rights Act. Perhaps because the EEOC’s statement on the issue followed so closely after the U.S. Supreme Court’s landmark decision on same-sex marriage, legal commentators are treating it as a major event. The truth is, however, the EEOC has been consistent for several years in delivering that message.

In 2012, the EEOC adopted a Strategic Enforcement Plan that included lesbian, gay, bisexual, and transgender individuals as being covered under Title VII's prohibition of sex discrimination. This meant that the agency would file charges on behalf of LGBT individuals on Title VII grounds. Even before the Strategic Plan, earlier in 2012, the agency had held that discrimination against a transgender individual violated Title VII.

Where the issue goes from here is up to the courts. There has already been some recognition of sexual orientation as a protected status in the federal courts, although in a veiled sort of way. Plaintiffs have been successful in pressing complaints on the ground that they were discriminated against because they did not fit gender stereotypes. In other words, a male employee with feminine mannerisms may be discriminated against because he doesn’t "walk like a man," or otherwise fit the traditional male mold.

In the case at hand, and no doubt buoyed by the High Court's action, the EEOC did not mince words, stating "sexual orientation is inherently a 'sex-based consideration,'  and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII." It is anticipated that the agency will now aggressively pursue sexual orientation based cases, which will push the issue to the federal courts. Up to this point, cases based only on sexual orientation have not  been successful. With this invigorated stance on the issue by the EEOC, however, some courts will likely begin to allow the cases to proceed. Ultimately, the U.S. Supreme Court will decide whether the EEOC's interpretation of Title VII is correct.

In Montana, discrimination on the basis of sexual orientation is prohibited in state employment by executive action. The prohibition does not extend to gender identity discrimination. The cities of Bozeman, Butte, Helena, and Missoula, plus Missoula County have ordinances banning sexual orientation and gender identity discrimination.

Discrimination in the workplace is a continuing problem for employees. The lawyers at Tipp & Buley have over 50 years of experience in defending employee rights under state and federal law. If you have been subjected to adverse treatment as a result of discrimination, call us today at 406-549-5186 or visit us online to set up a one-on-one consultation.


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