The EEOC’s Push to Expand Employees’ Rights Under Title VII to Include Protection from Workplace Discrimination on the Basis of Sexual Orientation

by Reminger Co., LPA

     Over the last five years, members of the LGBTQ community have had much to celebrate as traditional barriers to equality have been knocked down one-by-one by the federal government. In 2010, the Patient Protection and Affordable Care Act provided equal access to health care for all Americans, regardless of an individual’s gender identification or sexual orientation. In 2013, the United States Supreme Court decided United States v. Windsor, a case which held that Section 3 of the Defense of Marriage Act was unconstitutional because it purported to enact a federal definition of marriage that conflicted with marital rights already conferred on same-sex couples by certain states. In March 2015, the U.S. Department of Labor revised the regulatory definition of “spouse” under the Family Medical Leave Act (“FMLA”) so that eligible employees in legal same-sex marriages could take FMLA leave to care for their same-sex spouse or family member. Of course, just last year, the U.S. Supreme Court decided Obergefell v. Hodges, which established the right to marry as a fundamental civil liberty, protected by the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment, which may not be denied to persons on the basis of their sexual orientation.

     These victories for equality in the civil rights context have also worked their way into the employment law setting, primarily through the efforts and policy initiatives of the Equal Employment Opportunity Commission (“EEOC”). Even though the EEOC has had a policy of protecting employees from sexual orientation discrimination in the workplace though its administrative decisions dating back to 2012, the agency only this year filed its first cases in the federal district courts to argue that Title VII’s prohibitions against “sex discrimination” also encompass discrimination premised upon an individual’s sexual orientation. This article provides an analysis of those two cases and asks employers to consider the trajectory of recent developments in Title VII litigation. Furthermore, as a consequence of these cases, employers are encouraged to evaluate their internal policies and procedures to ensure that their current plans are adequate to protect against the risk of sexual orientation discrimination claims in the workplace.

     Framework of EEOC’s Stance Against Sexual Orientation Discrimination

     By way of background, the EEOC is authorized by Title VII to bring claims against private employers to redress instances of unlawful workplace discrimination when a conciliation of the matter cannot otherwise be achieved. Prior to a civil action being commenced, however, employees must file a charge of discrimination with the EEOC, which the commission then investigates and renders a decision pertaining to whether reasonable cause exists to show an unlawful employment practice. The particular types of employment practices prohibited by Title VII include discrimination based upon an employee’s race, color, religion, sex, or national origin. Notably, the text of the statute does not explicitly include the terms “sexual identity” or “sexual orientation” as prohibited forms of discrimination.

     However, in 2012, the EEOC decided Macy v. Holder, which for the first time stated the agency’s position that “claims of discrimination based on transgender status, also referred to as claims of discrimination based upon gender identity, are cognizable under Title VII’s sex discrimination.” The commission based its decision, primarily, on the U.S. Supreme Court’s case of Price Waterhouse v. Hopkins, which held that an employer engages in discrimination on the basis of sex when it takes adverse actions against employees for failing to conform to traditional notions of what is appropriate for one’s gender. Thus, even though the Price Waterhouse prohibition on so-called “sex-stereotyping” fell short of reading Title VII to expressly prohibit sexual identity discrimination, it did provide a sufficient framework for the EEOC to conclude in Macy that such a prohibition was a logical implication. The EEOC eventually extended this logic even further, in 2015, when it decided Baldwin v. Dep’t of Transportation, and concluded that discrimination based upon an employee’s sexual orientation necessarily involves “sex-based considerations,” and therefore constitutes unlawful sex discrimination under Title VII.

     Although the above-mentioned administrative decisions clearly indicated the EEOC’s position that sexual orientation discrimination falls within the types of conduct prohibited by Title VII as unlawful employment practices, that theory has not always been successful in cases brought by private plaintiffs in federal court. As alluded to, however, the EEOC recently elected to take up the banner itself by filing two cases against employers in the United States’ district courts.

     EEOC v. Pallet Companies dba IFCO Systems NA, Inc.

     In this case, filed in the U.S. District Court for the District of Maryland, a female former-forklift operator alleges that she was harassed by a supervisor on account of openly associating as a lesbian. The complaint in that action claims that the employee was subjected to repeated derogatory statements from her supervisor, such as: “I want you to turn back into a woman;” “I want you to like men again;” “You would look good in a dress;” “Are you a girl or a man?” and “You don’t have any breasts.”  The claimant complained to the company’s general manager and later contacted human resources about the treatment through the company’s employee hotline. Nonetheless, the EEOC alleges that upper management, including the company’s regional director, demanded that claimant resign from her job, which she ultimately refused to do. The company then fired her and called the police to escort her from the building. The EEOC’s complaint argues that the harassment and discharge constitute unlawful workplace discrimination based on sex, and therefore in violation of Title VII, because the claimant was treated less favorably “by virtue of her sexual orientation, [which] did not conform to sex stereotypes and norms about females to which [the supervisor] subscribed”.

     EEOC v. Scott Medical Health Center, P.C.

     In this case, filed with the U.S. District Court for the Western District of Pennsylvania, a male former-telemarketer was allegedly harassed by his manager on account of being openly gay. The EEOC’s complaint claims that the manager routinely made offensive comments to the claimant, anywhere from three to four times per week, specifically calling him “f-g,” “f-ggot,” “f-cking f-ggot,” and “queer.” The claimant purportedly complained to the company’s president about the treatment but was allegedly told nothing would be done to address the harassment. As a result, the EEOC argues that the claimant had no choice but to resign, i.e., a constructive discharge. As in the Pallet Companies case, the EEOC has argued that that the harassment and discharge constitute unlawful workplace discrimination based on sex, and therefore violate Title VII, because sexual orientation discrimination amounts to unlawful sex-stereotyping.

     What Employers Need to Know

     These two federal cases filed by the EEOC manifest the legal framework upon which the commission’s strategy for advancing sexual orientation discrimination claims lies. Its theory is deeply rooted in the U.S. Supreme Court’s 1989 Price Waterhouse decision and necessarily dependent upon the logical conclusions the commission reached in both Macy and Baldwin. Yet, the commission faces somewhat of an uphill challenge in this regard, as some of the U.S. Circuit Courts of Appeals, including the Sixth Circuit, have rejected such claims on the grounds that “sexual orientation discrimination” is not specifically enumerated among the types of employment practices made unlawful by Title VII and therefore not actionable.

     However, the most critical takeaway for employers is that the EEOC is no longer content to simply limit its policy regarding sexual orientation discrimination claims to its own agency investigations and adjudications. Instead, the Pallet Companies and Scott Medical Health Center cases demonstrate that the agency is now willing to pursue these claims by way of a civil action in federal court. Furthermore, in light of recent developments, specifically as to the U.S. Supreme Court’s recognition of civil rights for the LGBTQ community, there is every reason to believe the EEOC may very well succeed in its efforts to expand the protection available to employees under Title VII as well. As a result, it would be prudent for employers to begin evaluating their potential liability under Title VII to include these types of sexual orientation discrimination claims and take appropriate action to protect themselves. This could include amendments to employee handbooks or even EEOC training for supervisors and management. Employers should also ensure that any and all workplace postings required by the EEOC are up-to-date and accurately reflect the current state of federal employment law.

     Finally, and notably, it is a dangerous proposition for employers to simply assume that ultimately the federal Circuit Courts of Appeals are going to reject the EEOC’s position. Even if this is true on some level, employers could nevertheless face substantial costs and attorney fees via EEOC charges, investigations and potentially litigation. What is the better business decision: paying thousands to attorneys to defend antiquated employment policies; or revising policies to provide equal rights to individuals regardless of sexual orientation?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Reminger Co., LPA | Attorney Advertising

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