The US District Court for the Western District of Pennsylvania recently sided with the Equal Employment Opportunity Commission in holding that sexual orientation discrimination is a form of sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII or the Act), even though the Act does not expressly state that. U.S. EEOC v. Scott Medical Health Center, Case 2:16-cv-00225-CB (W.D. Pa. Nov. 4, 2016).
On March 1, EEOC filed the US Government’s first sex discrimination lawsuit based on sexual orientation in federal court in Pittsburgh. In its Complaint, EEOC charged that a gay male employee was subjected to sex discrimination in the form of harassment because of his sexual orientation and then forced to quit his job rather than endure further harassment. In response to EEOC’s lawsuit, the Defendant filed a motion to dismiss the case.
In a decision issued by US District Judge Cathy Bissoon, the Court denied Scott Medical Health Center’s motion to dismiss EEOC’s case. In its ruling, the Court found that sexual orientation discrimination is a type of discrimination “because of sex,” which is barred by Title VII. Applying decisions of the US Supreme Court’s finding that Title VII’s ban on sex discrimination includes adverse treatment of workers based on “sex stereotypes,” i.e. pre-conceived ideas of how a man or a woman should act or think, the federal court stated, “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.”
The Court then concluded, “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.” While the court made a legal ruling in the case, to date there has been no trial or factual finding whether discrimination actually occurred.
The Court’s decision is consistent with EEOC’s reading of Title VII’s sex discrimination ban. As the federal law enforcement agency charged with interpreting and enforcing Title VII, EEOC has previously concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination. On July 15, 2015, EEOC, in a federal sector decision, determined that sexual orientation discrimination is, by its very nature, discrimination because of sex. See Baldwin v. Dep't of Transp., Appeal No. 0120133080 (July 15, 2015).
In that case, EEOC explained the reasons why it believesTitle VII's prohibition of sex discrimination includes discrimination because of sexual orientation: (1) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex, as sexual orientation as a concept cannot be understood without reference to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and (3) sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.
Earlier this year, the US Court of Appeals for the Seventh Circuit held that Title VII did not prohibit sexual orientation discrimination. Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. July 28, 2016). Although the Court found merit in the argument, it held that circuit precedent compelled its ruling. The EEOC was not a party to that case.
As the case law develops, it is very likely that a split will emerge among the circuit courts on this issue that ultimately will be resolved by the Supreme Court. In any event, employers should remember that many state, county, and city laws already prohibit discrimination based on sexual orientation and gender identity or expression.