Tuesday, March 1, 2016
EEOC Sues for Sexual Orientation Discrimination
The EEOC issued a press release today, announcing that it has brought two cases alleging that discrimination on the basis of sexual orientation is discrimination on the basis of sex under Title VII. From the press release:
The federal agency's Philadelphia District Office filed suit in 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 its suit against Scott Medical Health Center, EEOC charged that a gay male employee was subjected to harassment because of his sexual orientation. The agency said 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, according to the suit. 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. Her supervisor 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," according to the suit. At one point, the supervisor blew a kiss at her and circled his tongue at her in a suggestive manner, EEOC alleged. The employee complained to management and called the employee hotline about the harassment. IFCO fired the female employee just a few days later in retaliation for making the complaints, EEOC charged.
These cases are an outgrowth of the agency's decision in the federal sector case Baldwin v. Dep't of Transp., Appeal No. 0120133080 (July 15, 2015). In that case, EEOC held that Title VII's prohibition of sex discrimination includes discrimination because of sexual orientation because:
(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.
The EEOC has also been filing amicus briefs in private cases urging the courts to accept this argument, most recently in Burrows v. The College of Central Florida and Evans v. Georgia Regional Hospital, both in the 11th Circuit. Accepting it would mean that the courts could stop struggling with trying to distinguish between sex stereotyping cases that are cognizable because they are really about sex and sex stereotyping cases that are not cognizable because they are about sex but also sexual orientation.