Harmon & Davies, P.C.

On March 1, 2016, the Equal Employment Opportunity Commission (EEOC) took the long predicted, but unprecedented, step of filing complaints in federal courts against two private companies alleging that sexual orientation discrimination is a violation of the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964. For the last several years, the EEOC has been accepting and investigating such allegations involving private employers and last year ruled in a case involving a federal government employee that sexual orientation discrimination was “inherently” a form of sex discrimination under Title VII.  To date, no federal appeals court has reached this conclusion and five Courts of Appeal have flatly rejected extending Title VII in this fashion.

To put this issue in a broader context, on July 21, 2014, President Obama issued Executive Order 13672 which amended Executive Order 11246 (issued in 1965) to include prohibitions against discrimination based on sexual orientation or gender identity, but the Executive Order only governs certain federal contractors. From 1994 through 2014, a version of the Employment Non-Discrimination Act (ENDA) was introduced in every session of Congress except for the 109^th Congress (2004-2005.)  Early forms of the legislation would have only prohibited discrimination by private employers of 15 or more employees based on sexual orientation, but beginning in 2007, the proposed legislation would have also prohibited discrimination based upon gender identity.  Each of these versions of the bill included a religious exemption provision.  It was thought that with the election of President Obama in 2008, together with Democrat control of the House and Senate that ENDA would become law in 2009 or 2010, but it seemingly got lost in a crowded legislative calendar.  ENDA was not introduced in the current session of Congress.  Rather, with broad backing from the LGBT community, a more comprehensive Equality Act was proposed which would prohibit discrimination based on sexual orientation and gender identity in employment, public accommodations, housing and a variety of other areas.  Given the current makeup of Congress, its prospects of passage are not favorable.

Critics of the EEOC’s recent action argue that it is another example of the Obama administration’s willingness to use the administrative process to revise existing law. Advocates for the LGBT community argue, however, that the new lawsuits are a natural extension of the EEOC’s efforts to provide broad protection under Title VII.  Persons on both sides of the issue will be carefully following the actions at the district court level.

The case against Scott Medical Center was filed in the Western District of Pennsylvania and alleges that a gay male telemarketing representative was subjected to a sexually hostile work environment based upon numerous offensive comments directed at him by his male supervisor pertaining to his sex life and other personal matters. The employee’s resignation in the face of this conduct is alleged to be a constructive discharge.  The case appears to have been assigned to Judge Cathy Bisson, who was nominated to the Court in 2010 by President Obama.  The other case, which was filed in Maryland, alleges that Pallet Companies d/b/a IFCO Systems violated Title VII by its treatment of a lesbian forklift operator which included comments directed to her by her male supervisor such as, “I want to turn you back into a woman” and “you would look good in a dress.”  She was terminated a few days after registering complaints about this behavior to management and on an employee hotline.  The EEOC alleges that this termination was unlawful.  This case appears to have been assigned to Judge Richard D. Bennett, who was nominated to the Court by President George W. Bush in 2003.  In both cases, in addition to the usual remedies, the EEOC is seeking that punitive damages be awarded to the complainants.  It will be very interesting to watch how the courts handle these cases.

From a practice perspective, however, it is highly recommended that employers get ahead of this issue and modify, if necessary, their existing Discrimination and Harassment policies to include broad prohibitions against discrimination that include sexual orientation and gender identity as protected categories. The attorneys at Harmon & Davies, P.C. are available to discuss these matters with you in further detail.

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