Continuing its increasing trend of filing lawsuits on behalf of Charging Parties on emerging issues, the US Equal Employment Opportunity Commission (EEOC) announced on March 1, 2016 that it has filed its first two sex discrimination cases based on sexual orientation. The EEOC filed suit in theUS District Court for the Western District of Pennsylvania against Scott Medical Health Center, and, in a separate suit, in theUS District Court for the District of Maryland, Baltimore Division, against Pallet Companies, dba IFCO Systems NA.

The Cases

In the suit against Scott Medical Health Center, the EEOC is alleging that a gay male employee was subjected to harassment because of his sexual orientation. The agency has claimed that the male employee's manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life. When the employee complained to the clinic director, the director allegedly responded that the manager was "just doing his job," and refused to take any action to stop the harassment, according to the suit. After enduring weeks of such comments by his manager, the employee quit rather than endure further alleged harassment.

In the IFCO Systems case, the EEOC has asserted that a lesbian employee was harassed by her supervisor because of her sexual orientation. Her supervisor allegedly made numerous comments to her regarding her sexual orientation and appearance, such as "I want to turn you back into a woman" and "You would look good in a dress," according to the suit. The EEOC further alleges that at one point, the supervisor blew a kiss at her and circled his tongue at her in a suggestive manner. The employee allegedly complained to management and called the employee hotline about the harassment. IFCO fired the female employee just a few days later in retaliation for making the complaints, the EEOC has charged.

Development of the EEOC’s Position on Sexual Orientation

These cases are significant because Title VII of the Civil Rights Act of 1964 prohibits discrimination because of sex, and makes no reference to sexual orientation. For years, that has meant that there was no federal prohibition against employment discrimination based on sexual orientation. However, as the federal agency charged with interpreting and enforcing Title VII, the EEOC has recently concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination.

On July 15, 2015, the 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, the EEOC explained the reasons why it believes Title 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 because 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.

According to the EEOC’s General Counsel David Lopez in a press release, the "EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation." He asserted that while some federal courts have begun to recognize this right under Title VII, “it is critical that all courts do so."

The EEOC stated in a press release that addressing emerging and developing issues, especially coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, is one of six national priorities identified in the agency’s Strategic Enforcement Plan (SEP). The EEOC has posted materials on its website relating to coverage under Title VII for LGBT individuals. In addition, in June 2015, the Commission, in coordination with the Office of Personnel Management, Office of Special Counsel, and the Merit Systems Protection Board, developed a guide for federal agencies on addressing sexual orientation and gender identity discrimination in federal civilian employment.

There is no doubt the EEOC’s position exposes private employers to more claims of sexual orientation discrimination under federal law. However, numerous states and many counties and cities already explicitly prohibit employment discrimination based on sexual orientation and gender identity.