On March 1, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it filed its first two sex discrimination cases based on sexual orientation. The EEOC filed suit in the U.S. District Court for the Western District of Pennsylvania against Scott Medical Health Center, and, in a separate suit, in U.S. District Court for the District of Maryland, Baltimore Division, against Pallet Companies, dba IFCO Systems NA. In the two separate lawsuits the EEOC alleges that a gay male employee and a lesbian employee were subjected to hostile work environments because of sex. Title VII of the Civil Rights Act of 1964 prohibits discrimination because of sex. According to the press release, “As the federal law enforcement agency charged with interpreting and enforcing Title VII, the EEOC has concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination.”
The filing of these federal cases follows a 2015 EEOC federal sector decision in which the agency determined that sexual orientation discrimination is, by its very nature, discrimination because of sex. See Baldwin v. Dep’t of Transp., Appeal No. 0120133080 (July 15, 2015). In Baldwin, EEOC explained the reasons why Title VII’s prohibition of sex discrimination includes discrimination because of sexual orientation: (1) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and (3) sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.
In its suit against Scott Medical Health Center, EEOC charged that a gay male employee was subjected to harassment because of his sexual orientation. According to the suit, the EEOC alleged that the male employee’s manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life. When the employee complained to the clinic director, the director responded that the manager was “just doing his job,” and refused to take any action to stop the harassment. After enduring weeks of such comments by his manager, the employee quit rather than endure further harassment.
In its suit against IFCO Systems, EEOC charged that a lesbian employee was harassed by her supervisor because of her sexual orientation and made numerous comments to her regarding her sexual orientation and appearance, such as “I want to turn you back into a woman” and “You would look good in a dress.” The EEOC alleged that, the supervisor blew a kiss at her and circled his tongue at her in a suggestive manner, the employee complained to management and called the employee hotline about the harassment and then fired the female employee just a few days later in retaliation for making the complaints.
EEOC General Counsel David Lopez stated that, “With the filing of these two suits, EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation” and stated that “while some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so.” The EEOC press release states that, “Addressing emerging and developing issues, especially coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, is one of six national priorities identified by EEOC’s Strategic Enforcement Plan (SEP).” As such, employers should expect the EEOC to conduct investigations and file additional cases seeking court approval of its interpretation of Title VII. Employers are best advised to have clear antidiscrimination policies and determine whether LGBT employees have the same protections as other protected employee categories.
Joette S. Doran has her law practice in Hoffman Estates. She concentrates in employment law and handles employment law actions in state and federal administrative agencies and courts. She was a former Co-Chair of the NWSBA Employment Law Committee, is a Member of the Board of Governors and is the Chair of the Women’s Law Committee. For more information please visit her website at www.joettedoran.com.