...an ounce of prevention is worth a pound of cure.
In recent court filings, the EEOC made its position official—sexual orientation discrimination is actionable under Title VII. On March 1, 2016, the EEOC filed two federal lawsuits alleging that employers permitted hostile work environments because of sexual orientation and retaliated against those employees for complaining about the alleged harassment.
In EEOC v. Scott Medical Health Center, filed in the Western District of Pennsylvania, the EEOC alleges that a male employee was harassed, retaliated against, and constructively discharged because he is gay. According to the complaint, the employee’s manager frequently referred to the employee using anti-gay slurs and epithets and made other highly offensive comments about the employee’s sexuality and sex life. The EEOC claims that when the employee complained about the harassment, nothing was done. Ultimately, the employee quit, allegedly because of the harassment.
Nearby in the Baltimore Division of the District of Maryland, the EEOC filed a case against Pallet Companies d/b/a IFCO Systems NA alleging that a female employee was harassed because she is a lesbian and fired because she complained about the harassment. The female employee claims that her supervisor made numerous offensive comments about her sexual orientation, including “I want to turn you back into a woman.” She also claims that the supervisor blew a kiss at her and made a suggestive gesture with his tongue.
Both lawsuits seek relief under Title VII, however, the plain language of Title VII only prohibits discrimination in employment based on an employee’s race, color, religion, sex, or national origin. Sexual orientation is not explicitly included.
Although members of the U.S. Congress have proposed amendments to extend Title VII’s protections to include sexual orientation, none of those amendments have been signed into law. Furthermore, courts have consistently rejected arguments made by employee plaintiffs that Title VII’s protections extend to an employee’s sexual orientation. See, e.g., Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) (“The law is well-settled in this circuit and in all others to have reached the question that [Plaintiff] has no cause of action under Title VII because Title VII does not prohibit harassment or discrimination because of sexual orientation.”); Evans v. Georgia Regional Hospital, 2015 WL 5316694 (S.D. Ga. Sept. 10, 2015) (“Although the Eleventh Circuit has not addressed this issue, every court that has done so has found that Title VII . . . was not intended to cover discrimination against homosexuals.”). In the last year, however, the EEOC and other federal agencies have made clear that they interpret Title VII’s prohibition of sex discrimination to extend to discrimination based on a person’s sexual orientation.
Refusing to wait on Congress to act or for the courts to accept its argument that discrimination based on sexual orientation is sex discrimination, the EEOC is marching forward by filing lawsuits. Only time (and the ensuing judicial opinions) will tell whether the EEOC’s interpretation is correct and whether an employee’s sexual orientation will be recognized as a protected characteristic under Title VII.
In the meantime, to avoid being the EEOC’s next target, employers whose current policies do not prohibit sexual orientation discrimination may want to implement the following strategies to reduce their exposure to sexual orientation discrimination claims.
1. Immediately Inform Supervisors, Managers, and Other Decision-Makers
Ignorantia juris non exusat, which, in this context means that ignorance of the law will not excuse discriminatory or retaliatory acts based on an employee’s sexual orientation (assuming the EEOC persuades the courts that Title VII’s prohibition of sex discrimination includes sexual orientation discrimination).
Most employers already train managers on Title VII’s prohibition of discrimination based on an employee’s race, color, religion, sex, or national origin, however, this training may not have included the possibility that sexual orientation discrimination is also prohibited. Given that an employee’s sexual orientation could very well be covered by Title VII in the near future, employers should make sure that all managers understand that harassment based on sexual orientation and retaliation for complaining about sexual orientation harassment could expose the employer to liability under Title VII. Emphasize that the same rules that apply to run-of-the-mill Title VII claims might also apply to complaints of sexual orientation discrimination or harassment. To be on the safe side, managers should handle alleged instances of sexual orientation harassment the same way they were trained to handle alleged race, color, religion, sex, or national origin discrimination.
2. Update Training Materials and Employee Handbooks
After you have informed your managers of the potential change in the law, update your anti-discrimination policy in training materials and employee handbooks to include a prohibition of sexual orientation discrimination. Employers can explicitly include sexual orientation in the list of prohibited forms of discrimination and harassment. Alternatively, employers can include an example of sexual orientation harassment as conduct the company does not permit.
The updated policy should clearly explain that discrimination and harassment is not tolerated, and that the employee should report any instance of discrimination or harassment...
3. Shore Up Affirmative Defenses
Title VII harassment and hostile work environment claims are precluded where the employer exercised reasonable care to prevent harassment and the employee failed to take advantage of remedial opportunities provided by the employer. To take advantage of this defense in a potential case alleging sexual orientation discrimination, employers should first make sure that policy updates that include sexual orientation harassment as prohibited conduct are well-disseminated among all employees. The updated policy should clearly explain that discrimination and harassment is not tolerated, and that the employee should report any instance of discrimination or harassment. Employers should then promptly and thoroughly investigate these reports.
In sum, an ounce of prevention is worth a pound of cure. It is far less costly to identify and address complaints of sexual orientation discrimination in the workplace on the front end when compared to the costs of protracted litigation and the risk that the courts might agree with the EEOC and hold employers liable under Title VII for discrimination based on an employee’s sexual preference.
[Summer Austin Wells is a member of Bradley Arant’s Litigation Group, and her practice includes developing and implementing litigation strategy in a variety of labor and employment matters, including claims of discrimination and retaliation under Title VII, § 1981, the Americans with Disabilities Act, and the Age Discrimination in Employment Act.]