Does Harassment Based on Sexual Orientation Count as Sex Discrimination?

the situation

One of your supervisors has been making offensive comments to a gay employee about his sexual orientation fairly frequently.   The employee complains to you, but you don’t take it seriously and thus, don’t take any action.  The employee then quits.  Could you face a possible claim under Title VII?

the ruling

Not only could you face a claim by an employee, but you could be looking at a lawsuit initiated by the EEOC.   Last week, the EEOC filed its first two suits alleging sexual orientation discrimination as a form of sex discrimination in violation of Title VII.  EEOC v. Scott Medical Health Center, P.C., Case No. 2:16cv00225 (W.D. Pa.); EEOC v. Pallet Co., d/b/a IFCO Systems NA, Inc., Case 1:16cv00595 (D. Md.).  In both cases, the EEOC alleges that employees were unlawfully harassed based upon their sexual orientation—and in both cases, the EEOC brought suit after its efforts to resolve the claims with the respective companies failed.

Scott Medical Health Center involves Dale Baxley, an employee in a telemarking position.  According to the lawsuit filed by the EEOC, for at least a month, Baxley’s supervisor, the telemarketing manager, regularly made offensive comments about and to Baxley related to his sexual orientation–including the use of derogatory and vulgar terms.  This kind of harassment occurred three or four times per week.  Additionally, the supervisor made many other offensive comments regarding Baxley’s sexual orientation, including commenting on his sexual relationship with his husband, and also yelled and screamed at Baxley generally.

Baxley reported his supervisor’s behavior to the president of the company, but no action was taken.  Baxley ended up quitting based on this sexually hostile work environment.   During an investigation of some unrelated charges asserted against the employer by other employees, the EEOC discovered what it determined to be the violation of Baxley’s rights.  The EEOC attempted to resolve the matter with Scott Medical Health Center, but was unsuccessful and initiated litigation.  As the EEOC explains in its lawsuit, the supervisor’s conduct was motivated by Baxley’s sex because Baxley did not conform to sex stereotypes and norms about males to which the supervisor subscribed and because the supervisor objected generally to males having intimate association with other males and specifically to Baxley’s relationship with his male partner.

The second case brought by the EEOC is against IFCO Systems and involves Yolanda Boone, a lesbian employee working as a forklift operator.  About three months after Boone was hired, she started working the night shift and almost immediately, was subjected to harassment from the night shift manager on a weekly basis related to her sexual orientation, ranging from comments about wanting to turn her back into a woman, to telling her that she would look good in a dress, to quoting biblical passages stating that a man should be with a woman, and, finally, to grabbing his crotch. Boone complained to her supervisor, but no action was taken.  Shortly after, the night shift manager blew her a kiss and stuck out his tongue toward Boone in a suggestive manner.  Boone again complained to her supervisor and ended up complaining to the General Manager.  She was first asked to resign and then ultimately fired.

Like in Scott Medical Health Center, the EEOC alleged that the supervisor’s conduct directed at Boone was motivated by her sex (female) because she did not conform to sex stereotypes and norms about females to which the night shift manager subscribed and that he generally objected to females having intimate relationships with other females and Boone’s own romantic relationship with her partner.

the point

These cases were just filed last week and so it is uncertain how they will turn out.  However, one thing is clear—the EEOC is taking aim at harassment based on sexual orientation in the workplace.  As EEOC’s General Counsel stated in a press release issued in connection with these two lawsuits, “With the filing of these two law suits, EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in the workplace because of their sexual orientation.”  Employers are well advised to take note of this position and make sure to investigate and seriously evaluate allegations of harassment related to an employee’s sexual orientation.