The EEOC recently announced two new lawsuits it has filed alleging that employers have violated Title VII's protections against gender bias to include prohibitions against sexual orientation bias. The lawsuits are not very surprising in light of the EEOC's position last July, in Baldwin v. Department of Transportation. There, in a case involving a federal employee, the EEOC took the position that discrimination against a person based on sexual orientation is, by its nature, discrimination on the basis of sex.
These lawsuits, filed in Pennsylvania and in Maryland, allege that the employers being sued violated Title VII based on allegations of harassment against their employees based on the employees' sexual orientation. The lawsuits will place this question squarely before the federal courts: Does Title VII's prohibition of sex discrimination include a prohibition of sexual orientation discrimination? Historically, both the EEOC and federal courts have interpreted Title VII's protections against sex discrimination as not including protections against sexual orientation bias. Since the EEOC's announced position in July 2015, some courts have begun to accept the EEOC's view, while other courts have continued to refuse to do so.
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