Two recent suits filed by the EEOC demonstrate the growing strength of the legal theory that Title VII protection extends to sexual orientation (despite the fact that it is not explicitly stated in the statute).

The Equal Employment Opportunity Commission (EEOC) filed discrimination lawsuits against two employers last week based on sexual orientation. One suit, filed against Pittsburgh-based Scott Medical Health Center (case 2:16-cv-00225-CB), alleges that a gay male employee was harassed due to his sexual orientation. The other, filed against global pallet manufacturer IFCO (case 1:16-cv-00595-RDB), alleges that a lesbian employee was fired after she reported her supervisor’s harassment to the company hotline—and that the firing came in retaliation for making the report.

In both recent cases, the employees’ supervisors reportedly made offensive comments directed toward the sexual orientation of the employees, including derogatory slurs, epithets and sexually suggestive comments. Additionally, the EEOC states that both employees reported the behavior through appropriate channels and that the employers took no action to stop the harassment.

In July of 2015, the EEOC concluded that discrimination on the basis of sexual orientation falls into the category of discrimination on the basis of sex—and is therefore unlawful under Title VII of the Civil Rights Act of 1964. The EEOC explained ruling in detail in the case of Baldwin v. Department of Transportation (appeal 0120133080).

The Commission cites one simple example in Baldwin to illustrate the core of its rationale for applying Title VII to sexual orientation: “…assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male.”
“With the filing of these two suits, EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation,” said EEOC General Counsel David Lopez in the EEOC’s press release.

Employers should take heed of the suits and review their anti-discrimination policies as well as hiring and onboarding procedures. Employers are legally responsible for ensuring a workplace free from discrimination. While some employers may have policies to protect employees against discrimination on the basis of sex, additional and specific protective policies and training should be implemented to address sexual orientation.