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EEOC Files First Complaints Alleging Sexual Orientation Discrimination Under Title VII

On March 1, 2016, the Equal Employment Opportunity Commission (“EEOC”) filed two lawsuits in federal court alleging sex discrimination based on sexual orientation in violation of Title VII of the Civil Rights Act of 1964. These filings are noteworthy because sexual orientation is not a protected category expressly enumerated in Title VII. However, in recent years the EEOC has consistently taken the position that sexual orientation discrimination is, by its very nature, discrimination because of sex. In fact, the EEOC has made coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions one of its six national priorities identified in its 2013-2016 Strategic Enforcement Plan (SEP).

On March 1, 2016, the Equal Employment Opportunity Commission (“EEOC”) filed two lawsuits in federal court alleging sex discrimination based on sexual orientation in violation of Title VII of the Civil Rights Act of 1964. These filings are noteworthy because sexual orientation is not a protected category expressly enumerated in Title VII. However, in recent years the EEOC has consistently taken the position that sexual orientation discrimination is, by its very nature, discrimination because of sex. In fact, the EEOC has made coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions one of its six national priorities identified in its 2013-2016 Strategic Enforcement Plan (SEP).

Agency statistics indicate that the EEOC has settled close to 200 sexual orientation bias cases and obtained $5.5 million in relief over the past three years. Employers should expect that the EEOC will vigorously pursue charges of sexual orientation discrimination and, if not otherwise resolved as part of the agency’s conciliation process, the EEOC is prepared to file federal lawsuits seeking redress for sex discrimination based on sexual orientation.

While the EEOC’s recent stance on sexual orientation discrimination may be historic in so far as it strives to expand the scope of Title VII, it does not fundamentally change employer obligations in New Jersey. New Jersey’s Law Against Discrimination has prohibited discrimination on the basis of sexual orientation since 1991, and in 2007 gender identity and expression was also added as a protected classification.

The EEOC’s recent filings serve as a reminder to employers that an employee’s sexual orientation should not be considered in making any employment decisions. Please contact Connell Foley's labor and employment law attorneys if you have any questions regarding sexual orientation discrimination, the EEOC’s recent enforcement efforts, or are interested in learning about our on-site workplace harassment prevention training program.

  • Partner

    Michael Shadiack is the Chair of Connell Foley’s Labor and Employment Practice Group. Representing a broad spectrum of employers and management personnel in the private and public sectors, he provides litigation defense and ...

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