EEOC: Discrimination Based on Sexual Orientation Is Sex Discrimination Under Title VII

By Cristeena G. Naser

The U.S. Equal Employment Opportunity Commission has issued a potentially groundbreaking decision, Complainant v. Foxx, finding that discrimination based on “sexual orientation” can be brought under Title VII of the Civil Rights Act of 1964 (Title VII). In so ruling, the Commission rejected several circuit court decisions that ruled Title VII does not include protection from discrimination based on sexual orientation. The Commission held, “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” In reaching its conclusion, the Commission held “[d]discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. ‘Sexual Orientation’ as a concept cannot be defined or understood without reference to sex.” For more on this decision, click here for an article by Denise Visconti and Kyle Nageotte of the law firm of Littler Mendelson.