According to new EEOC’s decision under Title VII of the 1964 Civil Rights Act, discrimination on the basis of sexual orientation is inherently sex discrimination. Thus, homosexuals in companies of 15 or more employees are protected against being fired because of their sexual orientation.
The EEOC used three legal theories to draw such conclusion: a disparate treatment claim, associational discrimination, and sex stereotyping. The agency explained that sexual orientation discrimination is sex discrimination because the employee’s sex is a factual cause of the disparate treatment, because the discrimination stems from the sex of the individuals the employee dates, and because the discrimination is based on the sex stereotyping that individuals should be only attracted to the opposite sex. Thus, such discrimination is sex discrimination prohibited by Title VII.
The Supreme Court has never yet held that homosexuals are a protected class subject to heightened scrutiny. The EEOC ruling can still be challenged in federal courts. However, in light of the recent same-sex marriage decisions and other precedents, employers are unlikely to prevail.
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