EEOC Stakes Its Turf on the Issue of Sexual Orientation Discrimination

By Jon Hyman

Jan. 12, 2016

As I thought of which David Bowie song to support today’s effort, the one that leapt to mind is “Space Oddity” (I was going to use “Changes”, but Dan Schwartz already claimed it for his post yesterday). 

To me, it is a complete oddity that, in the 2016, it is still statutorily legal for an employer to fire an employee because of that employee’s sexual orientation. On this point, the EEOC and I see eye-to-eye. The difference, however, is that the EEOC is in a position do so something about it. What it is not doing is sitting around and waiting for Congress to do something about it.

In a thorough 27-page amicus brief filed last week, the Agency details why it believes that Title VII already prohibits sexual-orientation discrimination as unlawful sex discrimination.

In sum:

Sexual orientation discrimination claims necessarily involve illegal sex stereotyping, illegal gender-based associational discrimination, and impermissible consideration of a plaintiff’s sex, placing them squarely within Title VII’s prohibition against discrimination on the basis of sex. 

The entire brief (available here, courtesy of EEOC Commissioner Chai Feldblum) is worthy of your time and attention, as is the issue of why we still need to have a debate that should have been settled long ago.

An oddity indeed.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at

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