The EEOC Won’t Stand for Sexual Orientation Discrimination in Private Employment.
At the present time, there is no federal law that protects private sector employees from discrimination or harassment based on sexual orientation. Since 1974, certain members of Congress have attempted, without success, to pass legislation that would protect members of the LGTBQ community from workplace discrimination by private employers, including proposed amendments to Title VII of the Civil Rights Act of 1964, the Equity Act of 1974, and the Employment Non-Discrimination Act of 2009. Despite these hurdles, the plaintiff’s employment law bar, the Equal Employment Opportunity Commission (EEOC), LGBTQ and other civil liberties groups, and the public continue to push for equal rights in employment for the LGTBQ community.
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the U.S. Supreme Court held that Title VII’s prohibition on sex discrimination includes harassment and discrimination for irrational sex stereotyping, like subjecting a gay employee to disparate treatment for being “effeminate” or harassing a lesbian employee for being “butch.” While the Price Waterhouse case seemingly provided some protections for gays and lesbians at work, it’s rationale is almost stereotypical in itself. Under Price Waterhouse, only those LGTBQ employees who exhibit traits commonly considered to be held by the opposite sex or contradict the stereotypical norms of their own sex have a chance. In other words, LGBTQ employees proceeding under the Price Waterhouse theory must show that the discrimination arises from an employee’s perceived gender deviance and not from anti-LGBTQ bias per se.
Recognizing that this flawed approach is insufficient to protect LGTBQ employees and provide them the same protections afforded to all other private employees under federal law, the EEOC recently filed two suits in federal district courts alleging that sexual orientation discrimination in private employment is unlawful under Title VII. In EEOC v. Scott Medical Health Center, P.C., which was filed in the Western District of Pennsylvania on March 1, 2016 (2:16-cv-00225-CB), the EEOC is suing provider of pain management and weight loss services, alleging that it discriminated against a gay male employee on the basis of sex in violation of Title VII when it subjected him to harassment because of his sexual orientation and/or because he did not conform to the employer’s gender-based expectations, preferences, or stereotypes. The EEOC further alleges that the defendant failed to take remedial steps to stop the harassment after the employee complained, resulting in his constructive discharge.
On March 1, 2016, the EEOC also filed EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc. (“IFCO”) in the District of Maryland court (1:16-cv-00595-RDB). In this case, the EEOC alleges that IFCO, a provider of reusable plastic containers, discriminated a lesbian employee on the basis of sex in violation of Title VII by terminating her for complaining about sexual orientation harassment. According to the complaint, the employee’s supervisor harassed her by repeatedly making comments, sometimes accompanied by sexually suggestive gestures, to her about her sexual orientation and nonconformity with stereotypical female gender norms. A few days after the employee complained to management and called IFCO’s employee hotline to complain, IFCO terminated her employment in retaliation.
Here at CLC, we will be monitoring these cases closely and provide updates on our blog and Facebook and Google+ pages.
As a side note, in July 2015, the EEOC successfully argued that that sexual orientation discrimination in federal employment is illegal under Title VII of the Civil Rights Act of 1964.
Title VII prohibits discrimination on the basis of sex, including, the Supreme Court has ruled, irrational sex stereotyping.