Pushing boundaries: EEOC brings sexual orientation discrimination suits

In its 2012 Strategic Enforcement Plan, the Equal Employment Opportunity Commission (EEOC) committed to making LGBT protection under Title VII a top priority. Over the last four years, the EEOC has made good on that commitment by accepting and tracking charges of discrimination based on LGBT status, issuing a fact sheet on Enforcement Protections for LGBT Workers, and filing lawsuits alleging transgender discrimination.

Now the EEOC has directly taken on sexual orientation discrimination by filing two lawsuits on March 1, 2016, contending that discrimination and harassment based on sexual orientation violate Title VII’s ban on sex discrimination. The EEOC issued a press release announcing the two lawsuits.

One suit alleges that a gay employee at a Pennsylvania medical center was subject to “a continuing course of unwelcome and offensive harassment.” Among other allegations, the EEOC asserts that the employee’s supervisor regularly called him by a string of offensive homophobic slurs. The employee complained to the medical center’s president, who allegedly refused to take any action. In the other suit, filed on behalf of a lesbian forklift operator in Maryland, the EEOC alleges that the employee was repeatedly harassed by comments and the inappropriate behavior of her immediate supervisor based on her sexual orientation. The complaint alleges that the employee complained to progressively higher levels of managers, but no remedial action was taken.

Some employers may wonder why this is news. For many years, there has been a debate about whether Title VII’s ban on sex discrimination was intended to encompass sexual orientation, which involves sexual preference, not gender. The EEOC’s position is that sexual orientation is a form of sex discrimination because it is, in essence, a type of unlawful gender stereotyping. In other words, the discrimination is based on stereotypical beliefs about who a person should be attracted to because of their gender. Since this is directly related to a person’s gender, the EEOC’s position is that this brings sexual orientation under the protection of Title VII. This argument is similar to the EEOC’s positon in a pending transgender discrimination case that has survived dismissal and is headed for trial in a Michigan federal district court.

The issue of whether sexual orientation is protected by Title VII has already been addressed in lawsuits brought by private plaintiffs and has found support by a growing number of courts. There is little doubt that this issue will play out in the courts for years to come and will likely require resolution by the Supreme Court.

But, putting aside the legal wrangling, employers need practical solutions to ensure that their workplaces are free of the type of discrimination and harassment that impedes productivity and saps employee morale. As the EEOC’s two new cases indicate, employers must recognize the importance of training managers to address and remedy inappropriate conduct. Although federal law is developing, employers must understand existing state laws and local regulations that already protect LGBT status.

Employers can learn more about their obligations in this emerging area, as well as trends, best practices, and employer strategies by attending the upcoming Business Hour presented by McDonald Hopkins’ Labor and Employment Practice Group on April 28 – Navigating a New Frontier: LGBTQ Issues in the Workplace. Watch for the invitation to our Business Hour coming soon.