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The Evolving Scope of Discrimination “Because of Sex”: What Employers Need to Know

Tuesday, November 17, 2015 2:19:00 PM

Neither Ohio nor federal law, at least explicitly, prohibit discrimination on the basis of sexual orientation, gender identity, or transgender status. Even so, the U.S. Equal Employment Opportunity Commission (“EEOC”) has endeavored to expand the protection of federal employment discrimination laws to these groups by interpreting “sex discrimination” broadly.

Since 1989, the Supreme Court has interpreted “sex discrimination” to include discrimination against an employee who fails to conform to stereotypical gender norms. In December 2012, the EEOC took it a step further, announcing that one of its top enforcement priorities is “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.” This announcement, coupled with the EEOC’s recent enforcement practices, makes clear that the EEOC intends to expand the current scope of sex discrimination to cover discrimination based on sexual orientation and transgender status, regardless of whether an employer has engaged in sexual stereotyping.

In furtherance of that objective, in July 2015, the EEOC issued a decision fi nding that discrimination on the basis of sexual orientation is always sex discrimination and, therefore, unlawful in all contexts. This particular decision only applies to federal government employees, but the EEOC has pursued litigation against at least two private employers on the same grounds.

This development has far-sweeping implications for employer practices from antidiscrimination policies, to employment applications, and dress codes. Employers would be best served by reviewing those policies and practices with legal counsel sooner rather than later.

Tom Green,
OSBA Certified Specialist in Labor & Employment Law,
Kastner Westman & Wilkins, LLC