Normally in this space we write about court decisions that have already occurred and are likely to impact employers. This week, we focus on cases that have just been filed and could have far reaching implications.
In a March 1, 2016 press release, the Equal Employment Opportunity Commission (EEOC) announced in two separate lawsuits that a gay male employee and lesbian employee were subjected to hostile work environments because of sex. The press release went on to say that these cases are the EEOC’s “first two sex discrimination cases based on sexual orientation.” As the EEOC pursues these cases, it is likely that the private bar will bring similar cases, particularly if the court allows the actions to continue under Title VII. These cases bear watching as the EEOC attempts to broaden the reach of Title VII to specifically include sexual orientation discrimination, and particularly the hostile work environment theory.As is often the situation with cases brought by the EEOC, the facts are egregious. The first case was filed in federal court in Baltimore. A female forklift operator alleged sex discrimination and retaliation based on lewd comments allegedly made to her by her shift supervisor. Among other things, her supervisor is alleged to have said, “I want to turn you back into a woman” and made sexually suggestive gestures toward her. The employee complained to superiors of the supervisor. The employer then asked the female employee to resign, and when she refused, she was fired.
In the second case a male employee alleged he was constructively discharged due to his supervisor creating “intolerable working conditions” which amounted to a hostile work environment. The supervisor “routinely made…other unwelcome and sexual comments” to the employee, including asking how he and his husband had sex. The employee complained to the company president who, it is alleged, “expressly refused to take any action to stop the harassment.” The employee resigned and alleged constructive discharge.
The EEOC made nearly identical allegations in both cases in support of the contention that sexual orientation discrimination falls within the prohibitions of sex discrimination under Title VII. As stated in one of the cases:
[The supervisor’s] aforementioned conduct directed at [the employee] was motivated by [the employee’s] 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 supervisor] subscribed; and in that [the supervisor] objected generally to males having romantic and sexual association with other males, and objected to specifically [the employee’s] close, loving association with his male partner.
The conduct alleged in the complaint, as we have noted, is egregious. There is little doubt that the employer would be liable for this conduct if proven true and occurring for reasons other than the employee’s sexual orientation. Regardless of the ultimate outcome, employers must be careful to stop and remedy all forms of unwelcome and offensive conduct, regardless of motivation.