It is not uncommon for the Equal Employment Opportunity Commission (EEOC) to push the envelope by taking positions in litigation that exceed the plain language of the federal statutes that it is charged to enforce.  Indeed, in its 2013-2016 Strategic Enforcement Plan, the EEOC identified addressing of emerging and developing issues as a priority, specifically mentioning as one of those issues is the “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.”  On Tuesday, the EEOC took the next step in prosecuting its Strategic Enforcement Plan when it launched a pair of federal lawsuits alleging discriminatory employment practices based on sexual orientation,  -- prime examples of the agency’s tendency to interpret statutes as broadly as possible and beyond what Congress intended.

In U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center, P.C., Case No. 2:16-cv-00225-CB (W.D. Pa. Mar. 1, 2016), the EEOC brought suit in federal court in Pittsburgh under Title VII of the Civil Rights Act of 1964, contending that the employer engaged in unlawful sex discrimination when a gay male was subjected to a “continuing course of unwelcome and offensive harassment because of his sex (male).”  The alleged misconduct included the manager’s routine use of harassing and sexually explicit language directed at the employee’s sexual orientation.  In addition to such anti-gay remarks, he made other offensive comments about the employee’s sex life and his partner. 

The EEOC further alleged that the employee was constructively discharged “as a result of the intolerable working conditions and [the employer’s] failure to take prompt and effective action to prevent or alleviate it.”  Specifically, when the employee reported his manager’s sexually discriminatory behavior to the president of the company, the president expressly refused to take action to stop the harassment, and stated that the manager was “just doing his job.” The employee ultimately resigned because he was unwilling to endure the misconduct any further. 

To escape the simple fact that Title VII does not explicitly prohibit discrimination on the basis of sexual orientation, the EEOC articulated its legal rationale as follows:  the offensive conduct directed at the employee “was motivated by [his] sex (male), in that sexual orientation discrimination necessarily entails treating an employee less favorably because of his sex; in that [the employee], by virtue of his sexual orientation, did not conform to sex stereotypes and norms about males to which [the manager] subscribed; and in that [the manager] objected generally to males having romantic and sexual association with other males, and objected specifically to [the employee’s] close, loving association with his male partner.”

The EEOC filed U.S. Equal Employment Opportunity Commission v. Pallet Companies d/b/a IFCO Systems, NA, Inc., Case No. 1:16-cv-00595-RDB (D. Md. Mar. 1, 2016), that same day in the U.S. District Court for the District of Maryland in Baltimore.  In that case, the EEOC alleged that a gay female forklift operator was subjected to unlawful sex discrimination. The night shift manager, who had asked the forklift operator to work some hours on the night shift, harassed her on a weekly basis with comments inquiring as to her gender and regarding her anatomy.  He expressed his desire to “turn [her] back into a woman” and quoted biblical passages to her to indicate that homosexuality is not condoned in the Bible.  He would also grab his crotch while staring at her.

Although the operator complained to her supervisor on two separate occasions, no action was taken to remedy the situation. The next month, the night shift supervisor made another sexually suggestive gesture toward the employee, who immediately complained again to her supervisor, and then to the General Manager.  The General Manager said he would speak to the night supervisor about the situation, but when the night shift supervisor came back to the warehouse, he continued to harass her.  She informed the General Manager that she would leave early that day and when she returned on her next scheduled workday, she was asked to resign.  She refused.   Later that day, she was called back to the General Manager’s office, and handed a typed letter of resignation.  She refused to sign the resignation letter.  At that point, she was informed that she was discharged, and the police were called to escort her from the employer’s property.

In both these cases, the EEOC presumably is relying on notable cases that outlawed discriminatory conduct based on gender-based stereotyping.  In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the U.S. Supreme Court ruled in favor of a female employee who was denied promotion to partnership because some of the other partners had pre-conceived notions that she should conduct herself in accordance with outdated views of how a woman should act.  According to one of those partners, to be successful, she needed to “walk more femininely, talk more femininely, [and] dress more femininely.”  Id at 230, 231, 235.  The EEOC will also look for support to the Supreme Court’s decision in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (l998), which held that same-sex harassment is actionable sex discrimination under Title VII.  While those cases are long-settled law, their extension to claims of sexual orientation itself, rather than through the use of a sexual stereotyping theory, is a new development.

In view of the EEOC’s obvious and aggressive focus on such issues, covered employers should take steps to ensure that their workplaces are free from any sort of harassment or discrimination, including discrimination based on sexual orientation.  That means proper training for the supervisory work force to ensure they understand their duties to prevent and stop harassment (including sexual orientation harassment).  We also recommend that employers implement proper systems to address employee complaints of mistreatment based on sexual orientation.