A July ruling by the U.S. Equal Employment Opportunity Commission in a case alleging discrimination based on sexual orientation will require employers to take a fresh look at their hiring practices and policies.

Following the Supreme Court's 2013 ruling that struck down the Defense of Marriage Act and its June 2015 ruling that the Constitution guarantees the right to same-sex marriage, the EEOC ruled July 15, 2015, that a federal employee had an actionable claim for sex discrimination when he alleged he was denied a promotion because of his sexual orientation.

This is the first time the EEOC has ruled that federal law protects employees based on sexual orientation.

Here are three takeaways from the landmark case:

1. The ruling breaks from previous interpretations of federal law

Although Title VII of the Civil Rights Act of 1964 prohibits private employers from discriminating on the basis of sex, federal courts have traditionally interpreted the law to not extend protection to employees based on sexual orientation.

Ohio law mirrors federal law on this issue for private employers. In other words, neither Title VII federal law nor Ohio law provides protection for lesbian, gay, bisexual and transgender employees in the private sector.

Both federal and Ohio courts have categorically rejected attempts by employees in the private sector to characterize sexual orientation discrimination claims as gender- or sex-based discrimination claims, describing those as impermissible “bootstrapping” because sexual orientation is not a category identified by Congress as being protected under Title VII.

However, with this recent decision, the EEOC is now interpreting the sex discrimination provision of Title VII to provide protection for employees based on sexual orientation.  The EEOC is able to accomplish this without Congressional action because it is not creating a new protected class, but only extending the protection within an already protected class to others.

In its decision, the EEOC found that sexual orientation discrimination “is premised on sex-based preferences, assumptions, expectations, stereotypes or norms. Sexual orientation as a concept cannot be defined or understood without reference to sex.”

2. Impact on private employers is likely

This recent decision signals the EEOC's intent to pursue charges on behalf of employees alleging sexual orientation discrimination against private employers.

It is likely that the EEOC will apply the analysis from this decision to private employers under Title VII because the language of the decision is not limited to federal employees.

As employers may be aware, an EEOC investigation can be costly and time-consuming.

3. Employers can take proactive steps to avoid claims

Private sector employers should consider these three steps to protect themselves from sex discrimination claims based on sexual orientation:

• Consult with counsel to discuss reviewing discrimination, harassment and EEO policies, as well as codes of conduct for employees.
• Train managers and employees to avoid harassment and discrimination in the workplace based on a co-worker's sexual orientation.
• Create and implement a procedure for investigating complaints of harassment based on sexual orientation.

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Matthew M. Ries is a lawyer with Harrington, Hoppe & Mitchell, Ltd. He can be reached at mries@hhmlaw.com or at (330) 392-1541.