The Equal Employment Opportunity Commission has made protection of LGBT workers from discrimination a key strategic enforcement priority. Although Title VII, the federal civil rights law, does not specifically reference transgender status or sexual orientation as protected categories, the EEOC has filed Title VII claims against employers alleging both transgender and sexual orientation discrimination. Now a decision in one of the EEOC’s first sexual orientation cases has resulted in an award of $55,000 to an employee forced to quit his job because of harassment on the basis of sexual orientation. (EEOC v. Scott Medical Health Center).
This victory is significant because it gives the EEOC the basis to continue pursuing LGBT discrimination protections at a time when other federal government agencies may be moving in the opposite direction. In addition, with many well-known companies facing a wave of harassment allegations, this case offers some critical lessons for employers on how to protect against such claims.
At its core, this case represents a pretty typical harassment case – except that the harassment is based on sexual orientation. The employee, a telemarketer at a Pittsburgh area medical center, was subjected to derogatory comments about his sexual orientation, gay slurs, and intrusive questions about his personal life and relationships by his supervisor.
The employee reported the harassment to the company’s owner, but the owner refused to take action and informed the employee that the supervisor “was just doing his job.” The harassment continued and the employee felt he had no choice but to quit his job after only one month of employment.
The employee filed a charge of discrimination with the EEOC, which the agency attempted to resolve. When those attempts proved unsuccessful, however, the EEOC filed a lawsuit. This case and another filed on the same day in March 2016 were the EEOC’s first two lawsuits alleging that discrimination on the basis of sexual orientation violates Title VII.
In November 2016, the court granted a default judgment in favor of the EEOC finding that sexual orientation discrimination is a type of discrimination “because of sex” that is barred by Title VII. The court noted that:
“There is no more obvious form of sex stereotyping than making a determination. . . . That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.”
Following a subsequent hearing on damages, in November 2017 the court awarded the employee $55,000. The court made clear that the award would have been higher award if it were not limited by a statutory damages cap.
Where does the law on sexual orientation protection stand?
The federal courts remain split on the issue of whether sexual orientation is a protected category under Title VII. In April 2017, the 7th Circuit Court of Appeals held that Title VII does protect sexual orientation. However, just a month earlier, the 11th Circuit came to the opposite conclusion. This split among the circuit means that this issue will likely end up before the Supreme Court in the near future.
Timely lessons for employers
The court’s opinion in EEOC v. Scott Medical Center reveals a number of significant missteps in the employer’s human resource practices. As a result, this case offers other employers some timely lessons about how to avoid and, if necessary, respond to workplace harassment complaints.
Lesson 1: Have an effective anti-harassment policy
The employer is this case had a comprehensive employee handbook that included an anti-harassment policy and an equal employment policy. However, those policies did not do the employer much good because it did not permit the employee to read or obtain copies of the policies. This basically made the policies useless.
A lesson for employers is not just to have an anti-harassment policy, but to ensure that employees have access to it, understand it, and know that the employer is committed to enforcing it.
Lesson 2: Train supervisors and employees on the anti-harassment policy
In addition, the court noted that the employer failed to train its workforce about its anti-harassment and anti-discrimination policies. The owner had to admit during the proceedings that he did not train the offending supervisor or any other employee on the policy.
Another lesson for employers is to ensure that they provide regular harassment training for supervisors and staff. In recent recommendations on harassment prevention, the EEOC has suggested that such training should be in-person and tailored to the organization – not a generic one-size fits all program.
Lesson 3:Conduct prompt and effective investigations
Even when the employee in this case complained about his supervisor’s actions to the owner of the company, nothing happened.
The lesson here is that employers must ensure that when complaints are made a procedure is in place to recognize and promptly respond.For the EEOC, this case represents an important strategic victory in the advancement of LGBT workplace protections. For employers, it represents a roadmap on how to avoid finding themselves named in a harassment complaint. Employers should promptly take the lessons of this case to heart.