gavel on rainbow flagJumping on the coattails of the recent Supreme Court decision regarding same-sex marriage, the EEOC has found that discrimination based on sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.

Currently, there is no federal statute that explicitly prohibits discrimination on the basis of sexual orientation, and Congress has failed to pass the Employment Non-Discrimination Act, which would afford such protections.  In the absence of such legislation, plaintiffs raising sexual orientation claims in states without statutory protections have attempted to characterize their claims as discrimination on the basis of sex.  While this approach has been successful in some cases, the argument has been rejected elsewhere, leaving gays and lesbians with no protections when they suffer adverse employment actions on the basis of sexual orientation. 

Twenty-one states and the District of Columbia have passed laws prohibiting employment discrimination based on sexual orientation, and eighteen states and D.C. also prohibit discrimination based on gender identity.   Pennsylvania prohibits discrimination against public employees based on sexual orientation only.  There are thirty four municipalities in the Commonwealth that protect citizens based on sexual orientation and in most places gender identity as well, including Philadelphia, Pittsburgh, and Allentown.

While the EEOC decision is not binding on courts, it can be used as persuasive authority.  Coupled with the Supreme Court’s recent decision, the EEOC decision could trigger a sea change in discrimination claims based on sexual orientation under Title VII, and provide previously unavailable protections to employees who suffer from discrimination based on sexual orientation.