The EEOC Title VII effort to protect LGBT (Lesbian, Gay, Bisexual and Transgender) workers relies on a broad definition of sex discrimination, treating harassment and discrimination claims under a “sex stereotyping†theory…The EEOC’s new emphasis on LGBT protections will shape its 
future enÂÂforceÂÂment and litigation against private employers, especially in states that don’t protect gender identity or sexual orientation. Expect the EEOC to educate the LGBT community about its recent rulings. Also expect more charges and more vigorous investigations…Make sure your policies are neutral with regard to sexual orientation, gender identity and expression, and prohibit harassment based on sexual preference, gender stereotypes or intolerance.
Federal law doesn’t prohibit discrimination against lesbian, gay, bisexual and transgender (LGBT) workers. Instead, LGBT protections are a varied patchwork of judicial and agency interpretations and state and local laws that make discrimination actionable only under specific circumstances. LGBT workers continue to face employment discrimination with relatively few legal protections.
In response, the EEOC has begun an effort to protect LGBT workers’ rights by broadly interpreting Title VII of the Civil Rights Act of 1964. The EEOC’s newly released Strategic Enforcement Plan for 2013-2016 lists “coverage of lesbian, gay, bisexual and transgender individuals under Title VII†as one of its top six national enÂÂforcement priorities. Expect the EEOC to take significant enforcement actions soon and litigate issues more aggressively.
No national law explicitly bans workplace discrimination based on sexual orientation or gender identity. Title VII’s language only protects individuals on the basis of “race, color, religion, sex, or natural origin.†LGBT advocates have tried to amend Title VII to add sexual orientation, expression and identity, but have consistently failed.
