The Supreme Court may not think bans on gay marriage are sex discrimination, but the Equal Employment Opportunity Commission thinks anti-gay discrimination in the workplace is. The EEOC, in a 3-2 vote, has concluded that Title VII of the 1964 Civil Rights Act forbids sexual orientation discrimination on the job because it’s a form “sex” discrimination, which is explicitly forbidden...

The EEOC’s view on sexual orientation, however, runs counter to the rulings of several circuit courts. These courts have reasoned that “sexual orientation” is not among the list of prohibited bases for employment action, that Congress did not intend to eliminate anti-gay discrimination...and that Congress has repeatedly refused to add “sexual orientation” to employment protections.

The EEOC calls these earlier circuit court decisions “dated,” and some of them have been undermined by subsequent precedents in the same circuits...

The interesting question now is how many circuit courts will go along with the EEOC’s new interpretation of Title VII.