Why it matters

Momentum continues in the direction of recognizing sexual orientation discrimination under Title VII with a decision from a Pennsylvania federal court in a suit brought by the Equal Employment Opportunity Commission (EEOC). The EEOC represented a gay male telemarketer for Scott Medical Health Center in Philadelphia, alleging that his supervisor created a sexually hostile work environment. The medical health center moved to dismiss the suit, arguing that Title VII does not encompass claims of discrimination based on sexual orientation, but the court disagreed. “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality,” the judge wrote. “[T]he Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two.” The court noted the changing legal landscape with regard to rulings providing protection against discrimination based on sexual orientation, from district court cases to the U.S. Supreme Court’s decision in Obergefell v. Hodges.

Detailed discussion

Five female workers at the Scott Medical Health Center in Philadelphia filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging they were subjected to discrimination because of sex by a coworker, Robert McClendon. In the course of its investigation, the EEOC learned of other alleged harassment at the hands of McClendon targeting Dale Baxley, a gay male.

Baxley began working for Scott Medical as a telemarketer in July 2013, with McClendon as his manager. According to Baxley, McClendon routinely made unwelcome and offensive comments, regularly calling him a “fag,” “faggot,” “f***ing faggot,” and “queer,” as well as making statements such as “f***ing queer can’t do your job” and offensive statements about Baxley’s relationship with his partner such as “I don’t understand how you f***ing fags have sex.” Despite complaining to the company’s president, the harassment continued, the EEOC said, and Baxley left the job in August as a result.

The EEOC filed suit on Baxley’s behalf pursuant to Title VII based on the sexually hostile work environment allegedly created by McClendon. The company moved to dismiss the suit on two grounds: first, that the EEOC failed to comply with the procedural requirements of Title VII and second, that Title VII does not protect discrimination on the basis of sexual orientation.

U.S. District Court Judge Cathy Bissoon found no merit to either argument.

Scott Medical argued that the EEOC needed to file a new charge on behalf of Baxley before filing its complaint because the original charge was based on the female employees’ allegations of discrimination and the agency must file a new charge when the allegations raised in the original charge are different than those uncovered in the course of the investigation.

“Defendant misses the mark,” the judge wrote. “Mr. Baxley’s claims do not involve a different type of discrimination,” the judge wrote. “The EEOC alleges that Mr. McClendon discriminated against and harassed Mr. Baxley ‘because of sex.’ The original charges that led to the EEOC’s investigation alleged the very same. That the precise form of the sex discrimination and/or harassment may have differed from individual to individual does not alter this conclusion.”

In addition, the court stated that the EEOC put the employer on notice regarding the potential for a suit related to Baxley by sending reasonable cause determination letters, requesting Baxley’s personnel file, asking questions about Baxley’s complaints while meeting with the company’s president and informing the company that additional victims had been uncovered during the course of the investigation, providing their names.

Turning to the argument that Title VII does not prohibit discrimination based on sexual orientation, Judge Bissoon found that, but for Baxley’s sex, he would not have been subjected to the alleged discrimination or harassment.

“The Court holds Title VII’s ‘because of sex’ provision prohibits discrimination on the basis of sexual orientation,” the court said. “Accordingly, the EEOC’s Complaint stating that Mr. Baxley was discriminated against for being gay properly states a claim for relief. The Court sees no meaningful difference between sexual orientation discrimination and discrimination ‘because of sex.’”

Incremental changes in how courts have interpreted Title VII’s “because of sex” language have occurred over the decades, the court noted, broadening the scope of the statute’s protections regarding sex discrimination in the workplace. The judge cited U.S. Supreme Court decisions such as Price Waterhouse v. Hopkins in 1989 (establishing the concept of “sex stereotyping”) and the 2015 opinion in Obergefell v. Hodgeslegalizing gay marriage.

“There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality,” the court wrote. “Indeed, the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two. It is, in the view of the undersigned, a distinction without a difference. Forcing an employee to fit into a gendered expectation—whether that expectation involves physical traits, clothing, mannerisms or sexual attraction—constitutes sex stereotyping and . . . violates Title VII. Simply put, Mr. McClendon’s alleged conduct toward Mr. Baxley ‘stemmed from an impermissibly cabined view of the proper behavior’ of men.”

For further support, the judge noted district court decisions from around the country endorsing an interpretation of Title VII that includes a prohibition on discrimination based on sexual orientation, including courts in Alabama, California, the District of Columbia, and Oregon.

“That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate,” Judge Bissoon wrote. “Because this Court concludes that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination ‘because of sex,’ Defendant’s Motion to Dismiss on the ground that the EEOC’s Complaint fails to state a claim for which relief can be granted will be denied.”

To read the memorandum order in EEOC v. Scott Medical Health Center, click here.