The U.S. Equal Opportunity Employment Commission is charged with enforcing a number of our federal workplace anti-discrimination laws. Title VII of the 1964 Civil Rights Act sets up a number of “protected classes” (i.e. race, color, religion, sex or national origin). Historically, sexual orientation was not protected on the federal level. Thus, a company was free to terminate or otherwise discriminate against a gay or lesbian employee solely because of their sexual orientation. Some states have state-level laws prohibiting such discrimination, such as New Jersey’s Law Against Discrimination (NJ LAD).
Last year, the EEOC recognized sexual orientation discrimination in the workplace as a form of sex discrimination and thus part of a protected class under Title VII. This week, the EEOC has brought its first lawsuits under this new legal theory, one in Pennsylvania and the other in Maryland. PA has no state level law prohibiting this type of discrimination — only an executive order.
Note: I mediate for the Philadelphia office of the EEOC but was not involved in these cases or any sexual orientation discrimination cases.
Will this be upheld? That remains to be seen, but note that the U.S. Supreme Court has previously upheld that Title VII’s sex discrimination ban does extend to sexual harassment as well as same-sex harassment. The latter was a unanimous decision (written by the late Justice Scalia).
Mediation is ideal for resolving all types of employment discrimination and harassment disputes. If you are interested in mediation, please contact me to discuss.