The ruling comes on the heels of the Supreme Court’s historic decision in Obergefell v. Hodges.

Now that same-sex couples have won the right to marry, comprehensive sexual orientation employment discrimination laws are widely considered to be the next big legal hurdle. As we have previously discussed on this blog, studies show that more than 40 percent of lesbian, gay, and bisexual workers have suffered sexual orientation employment discrimination.

Background of the ruling

The EEOC’s groundbreaking employment ruling arose in a sexual orientation employment discrimination claim brought by an air traffic control specialist against Transportation Secretary Anthony Foxx. By a vote of 3-2, the EEOC Commission concluded that sexual orientation employment discrimination constitutes discrimination for the purposes of Title VII even though it is not expressly listed as a prohibited basis for employment actions.

“Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms,” the EEOC’s ruling explained. “‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex. … It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involves sex-based considerations.”

While certainly monumental, the EEOC interpretation of Title VII is not binding on the federal courts. The Employment Non-Discrimination Act (ENDA), which would expressly ban LGBT discrimination in the workplace, has been pending in Congress for several years. However, it has failed to gain momentum, even in the wake of the Obergefell decision.

The Message for Employers

For employers, the EEOC’s ruling on sexual orientation employment discrimination should not be taken lightly. Even though the courts have not yet sanctioned it, the agency is likely to aggressively enforce its new interpretation. Also, as a reminder, any discrimination and/or retaliation against LGBT workers in New Jersey could give rise to liability under the New Jersey Law Against Discrimination, which includes both “affectional or sexual orientation” and “gender identity and expression” as protected classes.