Hunton Employment & Labor Perspectives

On March 1, 2016, the United States Equal Employment Opportunity Commission (“EEOC”) sued employers for the first time for sexual orientation discrimination. The EEOC filed lawsuits in federal courts in Pittsburgh and Baltimore against manufacturing and health care employers for unlawful sex discrimination on behalf of employees alleging they were harassed and discriminated against based on their sexual orientation.

The lawsuits allege violations of Title VII of the Civil Rights Act, which prohibits employers from discriminating against employees on the basis of their race, religion, sex or national origin. Title VII does not specify employee sexual orientation as protected under the Act. However, last year, the EEOC determined in an agency decision, Baldwin v. Foxx, that allegations of discrimination on the basis of sexual orientation can state a claim of discrimination on the basis of sex under Title VII. The cases filed this week are the first lawsuits the EEOC has initiated based on the argument that Title VII protects sexual orientation.

In U.S. Equal Employment Opportunity Commission v. Pallet Companies, the EEOC asserts that the defendant employer unlawfully discriminated against a lesbian employee on the basis of her sex, subjecting her to harassment, which culminated in her discharge. The EEOC alleges that Yoland Boone, a forklift operator, was harassed by a manager who would make suggestive gestures toward Boone and would tell her, among other things, “I want to turn you back into a woman” and “Are you a girl or a man?” Boone allegedly complained to her supervisor, the general manager, and the company’s human resources department. According to the complaint, Boone was shortly thereafter asked to resign and, when she refused, involuntarily discharged.

In U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center, P.C., the EEOC asserts that the defendant employer subjected a gay male employee to a sexually hostile work environment and constructively discharged the employee as a result of the harassment and failure to prevent or alleviate the harassment. In the complaint, the EEOC alleges that Dale Baxley, a telemarketer, was subject to harassment by his manager who “routinely made unwelcome and offensive comments about Baxley” and made highly offensive statements about Baxley’s relationship with his partner. According to the complaint, Baxley complained to the company president, who expressly refused to take any action to stop the harassment, resulting in Baxley’s resignation.

In both cases, the EEOC asserted that the harassing conduct and discharges were motivated by the employees’ sex because (1) sexual orientation discrimination necessarily entails treating an employee less favorable because of his or her sex; (2) the employee, by virtue of his or her sexual orientation, did not conform to sex stereotypes and norms about males and females to which the alleged harassers subscribed; and (3) the alleged harassers generally and specifically objected to romantic and sexual associations between members of the same sex.

While some federal district courts have indicated that an employee may state a claim under Title VII based on sexual orientation discrimination, no federal court of appeals has held that Title VII covers an employee’s sexual orientation. In fact, several courts have expressly held that harassment or discrimination based solely upon a person’s sexual preference or orientation (and not on one’s sex) are not unlawful employment practices under Title VII. Thus, the lawsuits may be subject to challenge at the dispositive motion stage, and any ruling in favor of the EEOC in these cases could be appealed. These cases show the EEOC’s new emphasis on protecting employees from sexual orientation discrimination and employers can expect more such lawsuits in the future.

Employers should review their EEO, anti-discrimination and anti-harassment policies and consider covering sexual orientation similarly to other protected categories. Employers should also consider using this as an opportunity to implement training programs that cover sexual orientation discrimination and harassment in the workplace.