Federal Court Allows EEOC’s Sexual Orientation Discrimination Claim to Go Forward

the situation

The EEOC has definitively targeted harassment and discrimination in the workplace based on sexual orientation, taking the position that sexual orientation is covered by Title VII.  And back in March, the EEOC filed a lawsuit against an employer in Pennsylvania in one of the first lawsuits brought by the EEOC alleging sexual orientation as a form of sex discrimination in violation of Title VII (EEOC v. Scott Medical Center, P.C., Case No. 2:16cv00225 (W.D. Pa.).  So what has the court decided about the claim asserted by the EEOC?

the ruling

Earlier this month, the federal court denied Scott Medical Center’s motion to dismiss the EEOC’s claim on the grounds that sexual orientation discrimination is not prohibited under Title VII.

The case involves an employee working in a telemarketing 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 and commenting on his sexual relationship with his husband.  Although Baxley reported his supervisor’s behavior to the president of the company, no action was taken.  Baxley ended up quitting and 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.

Scott Medical Center moved to dismiss on the grounds that Title VII does not prohibit discrimination based on sexual orientation.  The EEOC responded that the lack of an express reference to sexual orientation is not determinative. The gist of the argument made by the EEOC was that it was only because of Baxley’s sex that he was subjected to the discrimination or harassment—because if he was female instead of male, he would not have been subjected to discrimination based on his intimate relationship with a man, because he was targeted and harassed because of his intimate association with someone of the same sex, which necessarily takes his sex into account, and because he did not conform to stereotypes of what a man should do.

Scott Medical Center argued that the Third Circuit had previously held that Title VII should not be extended to cover discrimination based on sexual orientation.  But, distinguishing this case from these earlier decisions, the court agreed with the EEOC that Title VII’s prohibition of discrimination “because of sex” includes discrimination on the basis of sexual orientation. As the court explained, “[t]hat someone can be subjected to a barrage of insults, humiliation, hostility, and/or changes to the terms and conditions of their employment, based on nothing more than the aggressor’s view of what it means to be a man or woman, is exactly the evil Title VII was designed to eradicate.”

the point

Although the EEOC’s position on this issue is clear, courts facing this question have come down on both sides of the fence.  Some courts, including the Seventh Circuit Court of Appeals, have ruled that sexual orientation is not covered by Title VII. This ever-evolving area of the law is one to keep a close eye on—and employers need to be cautious and investigate and carefully evaluate reports of discrimination or harassment based on sexual orientation.