Sexual Orientation Discrimination: EEOC Initiates its Next Title VII Challenge
A new era of discrimination lawsuits is upon employers nationwide. Last month, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed its first lawsuits alleging sexual orientation discrimination under Title VII against employers in Pennsylvania and Maryland. The lawsuits are the latest step by the Commission to confirm its view that “sex” discrimination under Title VII encompasses discrimination based on sexual orientation. As with most discrimination cases filed by the EEOC, it seeks compensatory and punitive damages, as well as injunctive relief in both lawsuits.
Furthermore, with these lawsuits currently pending, the EEOC has also recently issued guidance on gender identity and sexual orientation discrimination.
This guidance is all stemming from last year’s EEOC decision in Baldwin v. Department of Transportation where the Commission held for the first time that a claim of discrimination, on the basis of sexual orientation, necessarily involved sex-based considerations under Title VII because sexual orientation discrimination: (1) inevitably involves treating employees differently because of their sex; (2) is associational discrimination on the basis of sex; and (3) necessarily involves discrimination based on gender stereotypes, including employer beliefs about the person to whom the employee should be attracted.
As such, with the filing of the two recent lawsuits in Pennsylvania and Maryland, the EEOC is seeking to have two separate courts agree with its guidance on sex-based considerations. In the first challenge, the Commission alleges that a Pennsylvania-based health care company subjected a gay male employee to harassment because of his sexual orientation. The lawsuit alleges that employee’s manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life. The employee complained to the clinic director, but the director allegedly refused to take any action to stop the harassment. The employee eventually quit.
In the second challenge, the EEOC alleges that a lesbian employee at a recycling company was harassed by her supervisor because of her sexual orientation. The supervisor purportedly made comments about the employee’s sexual orientation and appearance on a weekly basis. The employee purportedly complained to the general manager and called the company’s hotline about the harassment. She was fired just a few days after she raised complaints.
Take Away: Plaintiff firms are taking notice and it is expected that sexual orientation based discrimination suits will increase over the next year or so, particularly pending the outcome of the recent lawsuits. Consequently, employers should prepare for the EEOC to continue its focus on investigating sexual orientation and gender identity claims and should address these types of discrimination in training materials and handbooks. In the end, employers should treat any such complaints of discrimination just as it would for other Title VII based discrimination complaint raised internally.