By Eric B. Meyer
The U.S. Equal Employment Opportunity Commission is officially stepping into the ring and taking the fight to private-sector employers whom the EEOC believes has discriminated against workers on the basis of sexual orientation.
Yesterday, the EEOC announced that it had filed two complaints in federal court against employers whom it alleges engaged in anti-gay bias.
Oh, it’s on now!
What do the lawsuits say?
According to the EEOC press release, one of the complaints (filed in Pennsylvania federal court) alleges that “a gay male employee was subjected to harassment because of his sexual orientation … [because] the male employee’s manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life.”
Additionally, the EEOC alleges that the company failed to stop the harassment after the employee complained, forcing him to resign. You can view a copy of the complaint here.
The other complaint, which was filed in federal court in Maryland, involves a lesbian employee who, among other things, received unwelcome comments from a supervisor, such as “I want to turn you back into a woman,” and “You would look good in a dress.” The EEOC also alleges that the employee was fired for complaining about this behavior. You can find a copy of the complaint here.
Are these truly groundbreaking lawsuits?
In Oncale v. Sundowner Offshore Services, an opinion authored by Justice Scalia (yep!), the Supreme Court concluded that same-sex harassment can violate Title VII. That’s the federal anti-discrimination law governing sex discrimination. In Price Waterhouse v. Hopkins, the Supreme Court held that sexual stereotyping also violates Title VII. Thus, the Pennsylvania case doesn’t present much of a novel issue, if anything.
Indeed, while the court could decide to squarely address the issue of whether sexual-orientation discrimination violates Title VII, it doesn’t have to. But, if it did, the court would be obligated to find in favor of the employer on that issue. That is, a binding Third Circuit precedent holds that Title VII doesnot prohibit discrimination based on sexual orientation.
And while the Maryland case does not involve same-sex harassment, the court could still treat it as a sex-stereotyping case and follow Hopkins. Otherwise, it would have to respect Fourth U.S. Circuit Court of Appeals precedent that “Title VII does not prohibit conduct based on the employee’s sexual orientation.”
Maybe the EEOC is playing with house money
Hear me out.
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If the EEOC prevails on any one of the already-established theories, it’s a victory and the ends justify the means. However, an adverse ruling in either case may create an opportunity for the EEOC to appeal to the appellate court.
Once there, the EEOC would certainly ask for reconsideration and reversal of past precedent on the issue of whether Title VII’s ban on sex discrimination includes sexual-orientation discrimination.
So, what does all of this mean for you?
- The EEOC is firmly committed to pursuing sexual-orientation discrimination as a cause of action under Title VII. Expect the EEOC to continue to press until the Supreme Court rules definitively, or federal law is changed to explicitly include sexual-orientation discrimination as an unlawful employment practice.
- Remember that state and local laws where you operate may already prohibit discrimination based on sexual orientation.
- Each case above involves a claim of retaliation. Retaliation is the number one employment discrimination claim. When an individual makes a reasonable, good-faith complaint of discrimination, that person is protected against retaliation. So, even if Title VII doesn’t explicitly cover sexual-orientation discrimination, an employee who complains about anything that could be construed as sex stereotyping, same-sex harassment, or sexual harassment generally is protected.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.