In Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015), the U.S. Equal Employment Opportunity Commission has taken the position that discrimination based on sexual orientation is discrimination based on “sex” and actionable under Title VII of the Civil Rights Act of 1964.
Title VII prohibits discrimination based on, among other things, “sex,” but does not explicitly list “sexual orientation” as a protected characteristic/class. (In contrast, the New York State and City Human Rights Laws explicitly prohibit discrimination based on sexual orientation.)
From the decision:
Complainant’s claim of sexual orientation discrimination alleges that the Agency relied on sex-based considerations and took his sex into account in its employment decision regarding the permanent FLM position. The Complainant, therefore, has stated a claim of sex discrimination. Indeed, we conclude that sexual orientation is inherently a “sex-based consideration,” and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. A complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account.
Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. “Sexual orientation” as a concept cannot be defined or understood without reference to sex. A man is referred to as “gay” if he is physically and/or emotionally attracted to other men. … It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involve sex-based considerations.
This decision is not binding on the courts; it remains to be seen whether courts in New York will adopt its analysis and interpretation of Title VII.