The Equal Employment Opportunity Commission (“EEOC”) has filed its first two lawsuits against private employers alleging that discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964, as amended (“Title VII”).

The lawsuits should provide guidance on whether the sex discrimination prohibition in Title VII covers only discrimination on the basis of sex or gender – that is, being male or female- or whether it will be extended to cover sexual orientation discrimination.

In the two lawsuits filed in federal courts in Pennsylvania and Maryland, the EEOC alleges that a gay male telemarketing employee was subjected to a sexually hostile working environment because of his sexual orientation and that a lesbian forklift operator was harassed because of her sexual orientation.  The EEOC argues in both cases that sexual orientation discrimination “necessarily entails” discrimination because of the employee’s sex.

Most courts that have addressed the issue have declined to extend Title VII’s sex discrimination prohibition to claims involving sexual orientation, reasoning that when Congress passed Title VII in 1964, it did not intend for it to cover sexual orientation discrimination. Legislation that would outlaw sexual orientation discrimination routinely has been introduced in Congress but to date Congress has declined to pass such legislation.

This is an issue that bears close watching by employers. While it may take some time for these two cases to be resolved, in the meantime the EEOC appears to be committed to continuing to pursue this issue through the acceptance and investigation of charges alleging sexual orientation discrimination and the pursuit of lawsuits where the opportunity presents itself. Stay tuned!