So I’ve noticed that the EEOC likes to adopt major policy shifts in sneaky ways.  For example, when the EEOC first decided that pregnancy-related impairments may be disabilities under the amended Americans with Disabilities Act, it didn’t put in the revised regulations, but slid it into the Q&A document on the revised regulations.  When the EEOC decided that discrimination based on gender identity or transgender status was sex discrimination under Title VII, it stated this in a federal sector case (there’s a different EEOC process for government employees than for the rest of us), which is more difficult for the public to hear about.  (I previously blogged about this case, Macy v. Dept. of Justice).  And now the EEOC has done it again, with regard to sexual orientation discrimination, in another federal sector case – Baldwin v. Dept. of Transp.

Prior to this case, the EEOC had been very clear that sexual orientation itself was not protected by Title VII.  In November 2014, it issued a document, “What You Should Know about EEOC and the Enforcement Protections for LGBT Workers.”  (Let’s call this version 1 – you’ll see why in a minute).  In that document, while the EEOC flatly stated that gender identity discrimination is discrimination on the basis of sex under Title VII, the EEOC originally said, “The Commission has … found that discrimination against lesbian, gay, and bisexual individuals based on sex-stereotypes, such as the belief that men should only date women or that women should only marry men, is discrimination on the basis of sex.” (Emphasis added).

Courts in private sector cases, as well as the EEOC in other federal sector cases, have also consistently found that sexual orientation was not protected by Title VII, except to the extent that sex-stereotypes were involved.  For example, the EEOC stated in a 2014 case, Complainant v. Dept. of Homeland Security, that claims of sexual orientation discrimination “may intersect with” claims of sex discrimination where sex-stereotyping is involved.  This use of “intersect” necessarily involves two separate items that meet.

In Baldwin, however, the EEOC now takes the position 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.”  (Emphasis added).  In addition to noting that sexual orientation discrimination is often illegally based on sex stereotypes (the EEOC’s original, limited position), the EEOC now has added two other reasons as to why sexual orientation discrimination is sex discrimination: (1) “sexual orientation is inseparable from and inescapably linked to sex,” and (2) Title VII prohibits discrimination based on an individual’s association with someone with a protected characteristic (i.e. “associational discrimination”) – in this case, someone of the same sex.

Interestingly, the EEOC admits that “Congress may not have envisioned the application of Title VII to these situations.”  And, in fact, Congress clearly thinks that sexual orientation is not covered by Title VII, as it has repeatedly (over the last 20+years) considered – and rejected – legislation (The Employment Non-Discrimination Act) to make sexual orientation a protected category. But the EEOC apparently will proceed, nonetheless, to broaden the scope of Title VII.

Following the issuance of Baldwin on July 16, the EEOC is moving swiftly and silently to cement this position.  Yesterday, I viewed version 1 of EEOC’s “What You Should Know” document on its website.  This morning (July 23), however, I found a new version of the document has replaced version 1 – without fanfare, announcement, or even any indication that it had been revised!  This new version eliminates the sex-stereotyping limitation and baldly states: “The Commission has also held that discrimination against an individual because of that person’s sexual orientation is discrimination because of sex and therefore prohibited under Title VII. See David Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).”  In one fell swoop, the EEOC has just expanded the law!  Who needs Congress?

Sneaky.