EEOC's Push to Include Sexual Orientation As A Title VII Protection
Employers may soon face increased enforcement proceedings by the Equal Employment Opportunity Commission (“EEOC’) regarding sexual orientation discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). On June 28, 2016, the EEOC settled one of its first sexual orientation discrimination lawsuits with IFCO Systems for over $200,000.00. While Title VII does not expressly protect sexual orientation, the recent settlement highlights the EEOC’s push to interpret the statute to protect employees against discrimination based on sexual orientation. This article analyzes Title VII’s scope; the EEOC’s initiative to include sexual orientation discrimination as part of Title VII;, and the potential impact the EEOC’s initiative may have on employers.
Title VII and the EEOC’s Sexual Orientation Initiative
The EEOC is the enforcement agency for Title VII, which protects employees against discrimination based on “race, color, religion, sex, or national origin.” While sexual orientation is not a protected category under the statute, the EEOC has tried to expand Title VII’s reach to include sexual orientation discrimination as prohibited sex discrimination. As early as 2012 the EEOC held that a sexual orientation discrimination claim necessarily states a claim of sex discrimination under Title VII. The effects of the EEOC’s initiative is reflected in an increase in employee charges of discrimination related to sexual orientation filed with the EEOC, and the approximately $6.4 million in monetary relief obtained by the EEOC for employees due to such alleged discrimination.
The EEOC’s strategy includes bringing federal lawsuits against employers arguing that sexual orientation discrimination is prohibited by Title VII. In IFCO Systems, the EEOC sued the employer alleging in part that an employee was harassed because of her sexual orientation in violation of Title VII. While the employer denied the allegations, it settled with the EEOC for over $200,000.00 to avoid litigation. In addition to IFCO Systems, the EEOC also has pending litigation in Federal District Court in Pennsylvania, and has filed amicus briefs in the Seventh and Eleventh Circuits contending that alleged sexual orientation discrimination is prohibited by Title VII.
Both employer and employee representatives largely agree that sexual orientation discrimination should be prohibited in the workplace, however disagreement exists whether the EEOC through court action should rewrite Title VII. While no appellate court has held that Title VII protects sexual orientation discrimination, an appellate court may soon hold such protection exists, which would create a circuit split making the issue ripe for the Supreme Court to review. Congressional legislation to amend Title VII would definitely resolve the matter, but legislation to include such protections is unlikely to pass at present (see Campbell Litigation’s recent article). Accordingly, the EEOC will likely continue to litigate sexual orientation discrimination under Title VII.
Potential Impact on Employers
Many employers already include protections for employees based on sexual orientation and twenty (20) states, including Colorado, currently prohibit discrimination in employment based on sexual orientation. However, the EEOC is likely to continue highlighting and aggressively pursuing sexual orientation discrimination cases throughout the country and employers must take EEOC charges of sexual orientation discrimination seriously, especially where the EEOC is likely looking for test cases. Employers should also consider implementing policies regarding sexual orientation discrimination, and if such policies are in place, employers should ensure staff and management are properly trained on the policies to be best equipped to defend potential charges and/or lawsuits brought by the EEOC.
 EEOC Press Release, IFCO Systems Will Pay $202,200 In Landmark Settlement Of One Of EEOC’s First Sexual Orientation Discrimination Lawsuits, EEOC (June 28, 2016); see also EEOC v. Pallet Cos., No. 16-cv-00595, consent decree (D. Md. June 23, 2016).
 42 U.S.C. § 2000e-2(a)
 Kevin McGowan, EEOC Settles One of Its First Sexual Orientation Lawsuits, Bloomberg BNA Daily Labor Report (June 24, 2016).
 See Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012) (EEOC held that intentional discrimination against a transgender employee because of gender identity violates Title VII because it is discrimination based on sex); see also Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).
 EEOC, What You Should Know About EEOC and the Enforcement Protections for LGBT Workers. (Available at https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm) (last accessed June 30, 2016). The agency handled over 25% more sexual orientation discrimination charges in fiscal year 2015 than in fiscal year 2014.
 Id. The $6.4 million recovered by the EEOC for sexual orientation claims were based upon the EEOC settling claims before filing a lawsuit. The significance of the IFCO Systems settlement stems from the fact that the EEOC actually brought a lawsuit alleging sexual orientation discrimination as opposed to settling a charge of discrimination.
 EEOC v. Pallet Cos., No. 16-cv-00595, consent decree (D. Md. June 23, 2016).
 EEOC v. Scott Medical Health Cent., P.C., 16-cv-00225 (W.D. Pa. filed Mar. 1, 2016).
 See Evans v. Ga. Regional Hosp., No. 15-15234 (11th Cir. amicus brief filed Jan. 11, 2016); Burrows v. The College of Cent. Fla., No. 15-14554 (11th Cir. amicus brief filed Jan. 6, 2016); Muhammed v. Caterpillar Inc., No. 12-173 (7th Cir. amicus brief filed Oct. 9, 2014).
 Kevin McGowan, Lawyers Ponder the Meaning of ‘Sex’ Under Title VII, Bloomberg BNA Daily Labor Report (Apr. 4, 2016).
 See Why the Equality Act? Human Rights Campaign (http://www.hrc.org/resources/why-the-equality-act) (last accessed June 30, 2016).