The commission found that sexual orientation discrimination is sex discrimination for several reasons. Among the reasons, the commission stated, is because sexual orientation discrimination “necessarily entails treating an employee less favorably because of the employee’s sex” and “because it is associational discrimination on the basis of sex.”
After a review of the case law regarding similar challenges to employment practices alleging a violation of Title VII where the initial understanding of the law would not have included that coverage, the commission stated, “The courts have gone where the principles of Title VII have directed.”
“Our task is the same,” the decision found. “We therefore conclude that Complainant’s allegations of discrimination on the basis of sexual orientation state a claim of discrimination on the basis of sex. We further conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.”This is a huge deal! This means that in the 28 states which do not have state laws containing protections against employment discrimination based on sexual orientation, LGB people will have access to the EEOc process based upon federal law. This issue will become more salient as now that marriage equality is the law of the land nationwide, people's marital status may "out" them in the workplace, thus causing them to be subject to anti-LGB animus in many jurisdictions. This EEOC decision will provide many people with some measure of protection and recourse. However, we should not forget that LGBT people will still be able to be discriminated against in housing, credit, education and public accommodations in more than half the states.