The EEOC filed two lawsuits today alleging – for the first time – that discrimination on the basis of sexual orientation violates Title VII. As you know, sexual orientation is not expressly protected under Title VII, so these suits mark the EEOC’s expansive interpretation of its statutory authority.

One EEOC complaint, filed in Pennsylvania federal court, alleges discrimination against a male employee because of his sexual orientation, and the second complaint, filed in Maryland federal court, alleges discrimination against a female employee because of her sexual orientation. Each complaint alleges the relevant employer subjected the employee to homophobic epithets and other offensive remarks about the employee’s sexual orientation.

The EEOC’s underlying rationale for these lawsuits is that an employer’s harassing conduct of an employee based on his or her sexual orientation is inherently discrimination based on sex. The EEOC argues that the employer’s unlawful conduct is motivated by an employee’s sex by virtue of his or her non-compliance with sex stereotypes or heterosexually defined gender norms. The Pennsylvania complaint can be found here and the Maryland complaint here.