Last week, on November 4, 2016, a District Judge in the Eastern District of Pennsylvania held that discrimination based on sexual orientation constitutes sex stereotyping and is prohibited by Title VII. EEOC v. Scott Medical Health Center, 2:16-cv-00225 (E.D. Pa. Nov. 4, 2016). The Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit on behalf of Dale Baxley, a gay male employee who worked for Scott Medical Health Center PC. Mr. Baxley alleges that he was constructively discharged due to an alleged sexually hostile work environment. Arguing that Title VII does not protect discrimination based on the basis of sexual orientation, the defendant moved to dismiss.
The court’s analysis relied on the singular question of whether, “but for Mr. Baxley’s sex, would he have been subjected to this discrimination or harassment.” The court found that based on the allegations in the complaint, the answer is “no.” The court further stated that it sees no “meaningful difference between sexual orientation discrimination and discrimination ‘because of sex.’”
In its analysis, the court noted that the Supreme Court has consistently applied a broad interpretation of the “because of sex” language and cited to an example of where same-sex harassment, although not likely contemplated by Congress, was still covered by the statute. The court found that the form of sex stereotyping based on sexual orientation is the same as making a determination that an individual should conform to heterosexuality. Essentially, “[f]orcing an employee to fit into a gendered expectation – whether that expectation involves physical traits, clothing, mannerisms or sexual attraction – constitutes sex stereotyping[.]”
The court also acknowledged the recent legal history regarding sexual orientation. In 2015, the Supreme Court legalized same-sex marriage, and in that Opinion, stated that prior “unjustified inequality” can no longer go “unnoticed and unchallenged.”
As you may recall, in our blogpost dated August 1, 2016, “Seventh Circuit Makes the Case for Covering Sexual Orientation Under Title VII – Then Punts to the Supreme Court,” the issue of whether Title VII covers sexual orientation discrimination is currently before the Seventh Circuit. Last month, the Seventh Circuit vacated its own ruling that Title VII does not protect against sexual orientation discrimination. The Seventh Circuit will rehear a case where the plaintiff alleges that she was blocked from a full-time position because of her sexual orientation. Hively v. Ivy Tech Community College, 15-1720 (7th Cir. Oct. 11, 2016). It is only a matter of time before this issue is before the Supreme Court.
