Is sexual orientation finally a legally protected category under Title VII of the Civil Rights Act of 1964?
The EEOC has been increasingly focused on workplace discrimination against lesbian, gay, bisexual, transgender (LGBT) individuals and has brought litigation against many employers, or filed “friend of the court” briefs in cases involving non-profit organizations, alleging discrimination based on sexual orientation, gender identity, and sex.
On November 4, 2016, a federal district court ruled in U.S. EEOC v. Scott Medical Health Center (Case 2:16-cv-00225-CB), in U.S. District Court for the Western District of Pennsylvania in Pittsburgh, that sexual orientation is a prohibited form of sex discrimination–i.e., sex stereotyping– under Title VII of the Civil Rights Act of 1964, as amended.
In Scott Medical Health Center, the EEOC filed its first sex discrimination lawsuit based on sexual orientation. The EEOC alleged that a gay male employee was subjected to sex-based harassment because of his sexual orientation and then forced to quit his job rather than endure further harassment.
Specifically, the EEOC alleged that the male employee’s manager repeatedly referred to him using various anti-gay epithets such as “fag,” “faggot,” “fucking faggot,” and “queer,” and made other highly offensive comments about his sexuality and sex life. The EEOC further alleges that 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.
The employer moved to dismiss the complaint on the grounds that, among other things, Title VII did not prohibit discrimination based on sexual orientation. The court denied the employer’s motion to dismiss the sex discrimination lawsuit. In its ruling, the court noted that sexual orientation discrimination is a type of discrimination “because of sex,” which is barred by Title VII because it is based on “sex stereotypes,” i.e. pre-conceived ideas of how a man or a woman should act or think. The federal court stated, “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.” See file://sql2005/USERDATA/lisa/Downloads/gov.uscourts.pawd.229003.48.0.pdf. There has been no trial or factual finding, however, whether discrimination occurred.
The EEOC has previously concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination under Title VII, but the EEOC states that this is the first decision by a federal court making that finding. On July 15, 2015, the EEOC, in a federal sector decision, determined that sexual orientation discrimination is, by its very nature, discrimination because of sex. See Baldwin v. Dep’t of Transp., Appeal No. 0120133080 (July 15, 2015).
Even though Congress has not yet amended Title VII to prohibit sexual orientation discrimination, progress awaits no one. The EEOC has already been interpreting and enforcing Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. The EEOC is forging ahead with tackling workplace discrimination against LGBT employees based on sex as one of its top priorities set forth in its Strategic Enforcement Plan for FY 2017-2021. See https://www.eeoc.gov/eeoc/plan/sep-2017.cfm and https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.
Both non-profit and for-profit employers would be wise to:
- Review and update their employee handbook EEO policies and practices; and
- Train managers to ensure their workplaces are free of workplace discrimination based on sexual orientation or otherwise based on sexual stereotyping (even if State laws do not provide such protection).
