On July 15, 2015, the United States Equal Employment Opportunity Commission (“EEOC”) ruled that employment discrimination on the basis of sexual orientation constitutes sex discrimination that is actionable under Title VII of the Civil Rights Act of 1964, as amended. Baldwin v. Foxx, et al., No. 0120133080. The EEOC’s decision is premised on its theory that sexual orientation discrimination is rooted in traditional gender-related stereotyping and, therefore, fits in the protected class of gender within the meaning of Title VII. It is probably no coincidence that the EEOC’s ruling comes in the wake of the recent landmark U.S. Supreme Court decision that legalized same-sex marriage.
It should be noted, however, that the EEOC’s ruling is contrary to several U.S. Appellate Court decisions, which have consistently held that claims for employment discrimination based on sexual orientation are not actionable as sex discrimination under Title VII. The EEOC’s ruling in Baldwin does not overrule these appellate decisions. It remains to be seen whether Congress will enact legislation that amends Title VII to incorporate the EEOC’s ruling or add sexual orientation to Title VII as an independent protected class. In Illinois, sexual orientation is already recognized as an independent protected class under the Illinois Human Rights Act, which prohibits employment discrimination on the basis of sexual orientation.