A patchwork of state and federal laws addresses whether employers are prohibited from discriminating on the basis of sexual orientation. Twenty-two states and the District of Columbia prohibit sexual orientation discrimination in the workplace (nineteen states and the District of Columbia also protect against gender identity discrimination). At the federal level, executive orders protect lesbian, gay, bisexual, and transgender (LGBT) employees working for federal agencies and contractors. However, LGBT employees at private companies have traditionally not been protected by Title VII, the federal antidiscrimination law that on its face bars “sex” discrimination but not “sexual orientation” discrimination. The Equality Act, introduced into Congress in 2015, would amend Title VII by explicitly adding sexual orientation as a protected characteristic. Although several major U.S. employers (e.g., Apple, American Airlines, and Nike) support the act, the prospects for the bill’s passage with a Republican-controlled White House and Congress are dim.
The Equal Employment Opportunity Commission (EEOC)—the federal agency charged with enforcing Title VII—is not waiting for Congress. The EEOC is now bringing cases against private employers, alleging sexual orientation discrimination in violation of Title VII, and has filed three cases so far: EEOC (Baxley) v. Scott Med. Health Ctr., No. 2:16-cv-00225-CB (W.D. Penn. Mar. 1, 2016); EEOC (Boone) v. Pallet Cos., No. 1:16-cv-00595-CCB (D. Md. Mar. 1, 2016); and EEOC (Allyn) v. Rocky Mountain Casing Crews, No. 1:16-cv-00428-DLH-CSM (D.N.D. Dec. 22, 2016).