Until recently, no U.S. Court of Appeals for the Federal Circuit had extended Title VII to include sexual orientation as a protected class, meaning that LGBTQ individuals who suffer discrimination could not avail themselves of Title VII protection from bias. On the heels of Obergefell v. Hodges—the landmark U.S. Supreme Court decision favoring gay marriage—the Equal Employment Opportunity Commission (EEOC) issued a July 2015 administrative decision styled as Baldwin v. Foxx in which the agency held for the first time that a person alleging sexual orientation discrimination had a cognizable claim under Title VII. This administrative decision is not binding in a court of law but it underscores a societal shift toward greater protections for LGBTQ individuals and foreshadows a break from the significant body of case law holding that Title VII does not cover sexual orientation discrimination.
Title VII makes it “an unlawful employment practice for an employer … to fail or refuse to hire or to discharge … or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions or privileges of employment, because of such individual’s … sex,” 42 U.S.C. Section 2000e-2(a)(1). Many courts have said the word “sex” cannot be construed to mean “sexual orientation” and therefore have held that Title VII does not prohibit discrimination based on a person’s identification as gay, lesbian or bisexual.
