EEOC Continues to Push For Protection on the Basis of Sexual Orientation


By:  Amanda Hall

We’ve written on the EEOC’s push to include sexual orientation discrimination within the ambit of Title VII before (July 24, 2015).  Last summer, the EEOC determined that sexual orientation is a concept that “cannot be defined or understood without reference to sex” and that it is covered by Title VII because “it necessarily involves discrimination based on gender stereotypes,” which the Supreme Court held to be unlawful in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).  See Baldwin v. Foxx, Appeal No. 0120133080 (July 15, 2015).

Since then, the EEOC has continued to advance this position, most recently entering into a consent decree to resolve one of the first two cases it filed alleging that sexual orientation discrimination violates Title VII.  As part of the June 23, 2016, consent decree, the EEOC is requiring the employer at issue, Pallet Cos. d/b/a IFCO Systems, to institute company-wide LGBT training to its managers.  The underlying case involved the EEOC suing on behalf of a Lesbian forklift operator at IFCO’s Baltimore facility.  The allegations in the case included claims of daily harassment as a result of the employee’s sexual orientation, including comments such as “I want you to turn back into a woman,” “I want you to like men again,” and “[a]re you a girl or a man?”

At present, the federal courts (in contrast to the EEOC) that have addressed this issue have differentiated between sexual orientation discrimination (which they have found is not covered under Title VII) and discrimination based upon sex stereotyping (which is covered under Title VII).  It remains to be seen, however, whether the EEOC’s continued determination to place sexual orientation discrimination within the realm of Title VII will ultimately erase this line and eliminate this distinction.