As reported in EmployNews, over the past year the Equal Employment Opportunity Commission has aggressively shifted its position on the extent of coverage of LGBT workers under Title VII. In federal employee cases where the EEOC serves as decision maker, and in enforcement actions against private employers, the agency has broadened its view of protections against employment discrimination. Last week, the EEOC issued an overview summarizing its position on LGBT discrimination in the workplace.

Traditionally, the EEOC and federal courts took the position that Title VII does not include prohibitions against discrimination based on sexual orientation. This legal bar began to erode when courts accepted sex discrimination claims based on arguments that the plaintiff was held to an illegal sexual stereotype. In other words, employers cannot discriminate against persons who do not conform to their idea of how men and women should act or dress in the workplace. In the new overview, the EEOC states that the sexual stereotype theory directly prohibits discrimination against transgendered individuals. The EEOC will accept charges of discrimination alleging adverse employment action based on transgendered status.

The EEOC’s position on sexual orientation discrimination is more nuanced. For a period of time the agency took the position that Title VII only applies to such cases in the context of a sexual stereotype. An employer would not be subject to Title VII if the discrimination is based purely on the employee’s orientation. However in practice, this distinction may be difficult to draw. Most plaintiffs should be capable of making allegations that their behavior or appearance contributed to the employer’s objections to their sexual orientation.

That said, the EEOC’s position on discrimination based on sexual orientation appears to be moving toward a straightforward conclusion that Title VII prohibits such practices even in the absence of direct evidence of sexual stereotyping. In a recent federal employee case, the EEOC cited precedent involving the stereotyping concept, but did not directly rely on that theory in reaching its decision. Instead, the case appears to impose a direct ban on discrimination based on sexual orientation, without exception for cases that do not involve a stereotype.

LGBT rights advocates have been unable to enact federal legislation explicitly expanding employment discrimination laws to cover sexual orientation. The EEOC may have made this effort largely moot by using its enforcement powers to interpret Title VII broadly enough to encompass most LGBT discrimination claims. Federal courts will have the final word in determining whether this effort proves successful.