By Sam Schwartz Fenwick

In the months since the EEOC’s landmark ruling in Baldwin v Foxx (which we blogged about here), the looming question has been: Would federal courts adopt the Commission’s position that claims of sexual orientation discrimination were cognizable under Title VII? While there is not yet a definitive answer to that question, a recent decision from the Central District of California addressing sexual orientation under Title IX suggests that there is at least a modicum of judicial support for the reasoning of Baldwin.

In Videckis v Pepperdine University, Case No. 15-00298 (C.D. Cal. Dec. 14, 2015), the Court rejected a motion to dismiss brought by the University. The University argued Plaintiffs (two lesbian students) could not bring a cognizable claim of discrimination and retaliation under Title IX. The University reasoned Title IX’s prohibition of sex discrimination did not extend to claims of sexual orientation discrimination. The Court rejected this argument, relying heavily on the reasoning of Baldwin. The Court found discrimination based on sexual orientation was sex discrimination and thus covered under Title IX.  The Court’s inquiry focused on decisions previously issued under both Title VII and Title IX. The Court acknowledged that many other courts have held that sexual orientation is not covered under federal law, but the Court squarely rejected these holdings. It found any attempt to distinguish claims of sex from those of sexual orientation is “illusory and artificial” given that both types of claims rest on impermissible gender stereotypes (i.e. failure to conform with societal expectations of what it means to be a man or a woman). The Court explained “to allege discrimination on the basis of sexuality is to state a Title IX claim on the basis of sex or gender.” The Court further noted in dicta that claims of sexual orientation were covered under Title VII.

Videckis is an important decision for employers. While the lawsuit arose under Title IX not Title VII, the reasoning of the Court readily applies to Title VII given the similar verbiage of the statues and the regular practice of courts to look to case law under both statutes.  By giving credence to the expansive reasoning of the EEOC in Baldwin, Videckis adds voice to the growing chorus of support for the argument that claims of sexual orientation discrimination are actionable under current Federal law. That being said whether other courts will follow the lead of Videckis and/or extend its holding to claims under Title VII, is far from certain. Indeed, it is likely that courts will continue to reach divergent conclusions on whether the term “sex” appropriately covers claims of sexual orientation. Nevertheless, that at least some courts are beginning to consider these claim to be viable underscores the need for employers to prepare for a change in the legal landscape on this issue.

Along those lines, employers should increase their awareness of and sensitivity to issues related to sexual orientation in the workplace. Employers must be aware that  individuals may be protected under federal law in addition to relevant state or local laws, and that any allegations concerning sexual orientation discrimination require the same analysis, investigation and response as a traditional sex discrimination complaint. Finally, employers must evaluate their internal policies, practices and procedures with an eye toward sexual orientation issues to avoid potential complaints and liability.