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
Contact

     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

Written by:

Reminger Co., LPA
Contact
more
less

Reminger Co., LPA on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.