• EEOC Says Sexual Orientation Discrimination Is Sex Discrimination in Two Recently Filed Federal Lawsuits
  • March 21, 2016 | Author: Joshua A. Brand
  • Law Firm: Burns White LLC - West Conshohocken Office
  • On March 1, 2016, the EEOC filed two lawsuits under Title VII of the 1964 Civil Rights Act that address whether Title VII’s prohibition against sex discrimination includes discrimination based on sexual orientation. In EEOC vs. Scott Medical Health Center, filed in the Western District of Pennsylvania, the EEOC alleges that a gay employee was taunted by his homophobic supervisor and eventually forced to resign after management failed to correct the behavior. In EEOC vs. IFCO Systems, filed in the District of Maryland, a lesbian employee alleges similar acts of harassment and further that she was retaliated against by her employer when she complained. Both cases represent the Commission’s latest step toward fulfilling its 2012-2013 Strategic Enforcement Plan which included among its priorities coverage for gays and lesbians under Title VII’s sex discrimination provisions.

    Background
    Title VII prohibits discrimination against workers based on their race, color, sex, religion, and national origin. The statute does not specifically prohibit or even address discrimination based on sexual orientation. As discussed in one of my earlier posts, an employee can sue under Title VII for sex discrimination on a theory of sex stereotyping, which the courts generally define as discrimination based on an individual’s perceived gender non-conforming characteristics. However, federal courts have held that negative treatment based solely on an individual’s sexual orientation is not covered by Title VII and that a complaint of harassment based on sexual orientation is not protected activity under Title VII. To put it differently, the LGBT employee fired for being “too butch” or “too feminine” or whatever the case may be may have a sex discrimination claim under Title VII, yet the employee fired because his or her boss just plainly hates LGBTs is seemingly left out in the cold. This is assuming, of course, that the employee does not live in a state like New Jersey, where discrimination based on sexual orientation is expressly prohibited. The two suits filed by the EEOC pursue a very clear cut goal of knifing through this murky legal landscape - a gay employee fired for being gay is sex discrimination, no two ways about it.

    The Scott and IFCO cases are by no means the first two sexual orientation discrimination lawsuits that have been brought under Title VII. However, they are perhaps the most significant due to their timing and the plaintiffs involved. Just last year, after decades of legal battles, the U.S. Supreme Court held that a state violates the U.S. Constitution when it enacts a ban on same-sex marriage. Federal housing and employment rights have been widely viewed as next on the civil rights frontier for the LGBT community. The EEOC has the resources and motivation to see these cases to the end, which may mean a showdown before a potentially more liberal U.S. Supreme Court (with the recent passing of Justice Scalia) than the one that recently upheld marriage equality.

    For Employers

    Your business may already operate in a jurisdiction that prohibits sexual orientation discrimination. Even if it doesn’t, however, the EEOC has shown that it is not at all shy about taking you to federal court if you discriminate or tolerate discrimination against your LGBT employees. In light of the Commission’s aggressive posture on this issue, not to mention the splitting P.R. headache that will accompany any litigation that follows, you are well advised to update your handbooks and trainings to cover discrimination and harassment against LGBT employees.