Last July, I blogged that the EEOC, by a 3-2 vote, found that discrimination based on sexual orientation is prohibited by Title VII.  In December, a United States District Court appeared to be the first in the nation to adopt the rationale set forth by the EEOC.  On March 1, 2016, the EEOC filed 2 separate lawsuits in its name, alleging discrimination based on sexual orientation. 

Buzzfeed reported that in Maryland, the case of EEOC v. Pallet Companies was filed, alleging that Pallet discriminated against one of its employees, Yolanda Boone, “by subjecting her to harassment” due to her being a lesbian, which ultimately resulted in her termination, and by retaliating against her when she complained about the harassment.  The complaint alleges, among other things, that: Pallet hired Boone on September 14, 2013, as a forklift operator working the first shift. Boone was an excellent forklift operator;  Boone is a lesbian and her sexual orientation was known to most, if not all, other co-workers, including the night shift manager, Charles Lowry;  almost as soon as Boone began working the night shift, Lowry began harassing Boone on a weekly basis, making comments such as “I want to turn you back into a woman;”  “I want you to like men again;” “You would look good in a dress;” “Are you a girl or a man?” and “You don't have any breasts” ; and he also quoted biblical passages stating that a man should be with a woman and not a woman with a woman.  After complaining to HR, Boone was instructed to sign a resignation letter or be fired.  She refused to sign the letter, and her employment was terminated.  

In Pennsylvania, the EEOC sued Scott Medical Center, alleging that one of its employees, Dale Baxley, who is gay, was subjected “to a sexually hostile work environment” by his manager, and subsequently constructively discharged by not addressing his complaints of an “intolerable working conditions”.  The lawsuit filed by the EEOC alleges, among other things, that: Dale Baxley is a gay male who was supervised by Robert McClendon; that Scott Medical Center engaged in sex discrimination against Baxley by subjecting him to a continuing course of unwelcome and offensive harassment because of his sex (male); that such harassment was of sufficient severity and/or pervasiveness to create a hostile work environment because of his sex (male); the harassment included calling Baxley several offensive names; and that Scott Medical Center constructively discharged Baxley because of his sex (male). Baxley reported McClendon's sexually discriminatory behavior to Defendant's president, Dr. Gary Hieronimus, but Hieronimus expressly refused to take any action to stop the harassment. Baxley resigned in response to Defendant's creation of, and refusal to discontinue, a sexually hostile work environment.

Buzzfeed has copies of the suits available in their article for your review. 

Practice pointers.  

The EEOC is venturing into uncharted territory with these lawsuits.  Although the EEOC, as an agency, has recognized sexual orientation as being protected under Title VII, it will take several long, drawn out, expensive and time consuming lawsuits for the courts to ultimately decide this issue.  It should be pointed out that federal legislation has been introduced, but never passed, that would recognize sexual orientation as a protected class.  It will be argued by employers that the fact that legislation has been introduced, but never passed, demonstrates that Title VII, as it is presently written, does not protect sexual orientation discrimination.  This is another line of cases that I expect will wind its way to the Supreme Court.  Cases like these demonstrate that the untimely passing of Justice Scalia, as well as the upcoming elections, do have serious consequences in the employment world.  As these cases progress, I will post updates.  In the meantime, employers should seek legal counsel when making employment decisions based on, or which can arguably be based on sexual orientation, as the decision may result in a lawsuit filed by the (ex) employee or the EEOC.