The Equal Employment Opportunity Commission ("EEOC") issued an internal memorandum whereby field offices were instructed to handle LGBT charges as follows:
1) Complaints of discrimination on the basis of transgender status or gender identity-related discrimination should be accepted under Title VII and investigated as claims of sex discrimination in light of Commission precedent; and
2) Individuals who believe they have been discriminated against because of their sexual orientation should be counseled that they have a right to file a charge with the EEOC, and their charges should be accepted under Title VII and investigated as claims of sex discrimination in light of Commission precedent.
The memorandum then sets forth several items of precedent both in private sector litigation and Commission actions. Essentially, the EEOC is taking the position that discrimination based on sexual orientation may be grounded in sex-based stereotypes (e.g., that men should be sexually attracted to women and that women should be sexually attracted to men) and thus violate Title VII's prohibition on sex discrimination. The EEOC also takes the position that complaints of sexual orientation discrimination can constitute "protected activity" for purposes of a retaliation claim under Title VII.
Currently, some federal circuits have held that Title VII does not prohibit sexual orientation discrimination, while other courts have expanded Title VII to allow such claims. The 7th Circuit in Muhammad v. Caterpillar, Inc., (7th Cir. 12-1723) stated categorically that Title VII does not prohibit sexual orientation discrimination or related retaliation. The EEOC approved participation as amicus curiae in support of panel rehearing the case.
Given the Employment Nondiscrimination Act ("ENDA") may never be passed given attitudes in both parties about LGBT rights, the EEOC's best hope (thought also unlikely) is for the Supreme Court to hold that Title VII does cover these types of claims so ENDA's passage does not become as necessary.
Luckily for Wisconsin employees, the Wisconsin Fair Employment Act ("WFEA") does prohibit discrimination on the basis of sexual orientation, though arguments similar to the EEOC's argument under Title VII could be applied to the WFEA for gender identity and transgender discrimination.