Thursday, March 3, 2016

EEOC Files Landmark Lawsuits Alleging Discrimination Based on Sexual Orientation Violates Title VII

This week, the U.S. Equal Employment Opportunity Commission (EEOC) made the landmark announcement that it has sued two companies for sexual orientation discrimination under Title VII. On March 1, 2016, the EEOC filed suit against Scott Medical Health Center in federal district court in Pennsylvania and Pallet Companies d/b/a IFCO Systems in federal district court in Maryland.  Both cases allege that the defendant employers discriminated against the plaintiffs based on sexual orientation and, by doing so, violated Title VII of the Civil Rights Act of 1964. Title VII does not expressly reference “sexual orientation” as a prohibited form of discrimination. The EEOC is, however, pursuing its position that Title VII’s prohibition on sex discrimination encompasses discrimination based on sex stereotyping and, therefore, extends to both sexual orientation and gender identity.

In the Scott Medical Health Center case (Case No. 2:16-cv-00225), the EEOC alleges that, for a period of about one month, plaintiff Dale Baxley’s manager routinely made unwelcome and offensive comments about Baxley, who is a gay male, including referring to Baxley by various anti-gay epithets and making offensive comments about his sex life. The complaint alleges that Baxley complained to the company’s president, who “expressly refused to take any action to stop the harassment” and, therefore, Baxley resigned rather than endure the sexually hostile environment.

In the IFCO Systems case (Case No. 1:16-cv-00595), the EEOC alleges that plaintiff Yolanda Boone, a lesbian woman, began to experience discrimination approximately three months after being hired by the defendant IFCO in 2013. Allegedly, Boone’s shift manager requested that she work some night shift hours and “almost as soon as Boone began working the night shift, [the manager] began harassing Boone on a weekly basis, making comments such as ‘I want to turn you back into a woman,’ ‘I want you to like men again,’ [and] ‘You would look good in a dress.’” The EEOC alleges that no action was taken by the defendant to remedy the situation when Boone complained and that Boone was fired in retaliation for her complaints.

These lawsuits are the latest action by the EEOC to promote, consistent with its strategic plan, coverage of LGBTQ individuals under Title VII’s sex discrimination provisions. While the U.S. Supreme Court has held that same sex harassment is prohibited by Title VII throughout the country, there is not similar authority on whether Title VII prohibits discrimination based on sexual orientation and this remains unsettled under federal law. 

Employers should be mindful, however, that Minnesota and a number of other states have state laws that expressly prohibit discrimination on the basis of sexual orientation. In addition, some states, including Minnesota, also prohibit gender identity discrimination in employment. As the push for federal protection on these fronts continues, the EEOC’s actions are an important reminder to employers to assess their legal obligations in this area. While certain religious employers may be exempt from sexual orientation and gender identity discrimination laws, it is important for all employers to confirm their obligations and, as appropriate, to update policies and training related to workplace discrimination and harassment.

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