The Equal Employment Opportunity Commission recently filed its first suits challenging sexual-orientation discrimination as sex discrimination — one comes from Pennsylvania and the other Maryland. In the lawsuits, the agency charges that a gay male employee and a lesbian employee were subjected to hostile work environments because of their sex.
This comes seven months after they found that bringing such charges was legally permissible based on a long line of precedent. On July 15, 2015, the EEOC ruled in a 3-2 decision that sexual-orientation discrimination is illegal under Title VII of the Civil Rights Act of 1964 because it’s a form of “sex” discrimination, which is explicitly forbidden. The EEOC relied on its previous decision finding that Title VII bars discrimination on the basis of gender identity, protecting transgender employees, but this groundbreaking decision effectively declares that employment discrimination against gay, lesbian and bisexual workers is unlawful in all 50 states. The EEOC’s decision regarding LGBT discrimination in the workplace has been a long time in the making and can be traced back to a unanimous 1997 Supreme Court opinion in Oncale v. Sundowner, written by none other than Justice Antonin Scalia.
That case confronted Title VII’s prohibition of discrimination “because of sex” after Joseph Oncale was brutally sexually harassed, physically and verbally, by seven men with whom he worked on an oil rig. Even though Scalia acknowledged that male-on-male sexual harassment “was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” he continued by stating that, “[s]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
The EEOC’s Philadelphia District Office filed suit in U.S. District Court for the Western District of Pennsylvania against Scott Medical Health Center, and, in U.S. District Court for the District of Maryland, Baltimore Division, against Pallet Companies, dba IFCO Systems. In its suit against Scott, the EEOC charged that a gay man was subjected to harassment because of his sexual orientation when his manager repeatedly referred to him using various antigay epithets and made other highly offensive comments about his sexuality and sex life. When he complained to the clinic director, the director 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, he quit rather than endure further harassment.
In its suit against IFCO, the EEOC charged that a lesbian’s supervisor made numerous comments 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.” Similarly, she complained to management and called the employee hotline about the harassment. IFCO fired the female employee just a few days later, seemingly in retaliation for making the complaints.
The EEOC’s holding based on Oncale and other case law is straightforward, which is quite welcomed! Title VII prohibits discrimination on the basis of sex, including irrational sex stereotyping. The EEOC previously held that when an employer discriminates against a gay employee for being effeminate — or a lesbian employee for being butch — that qualifies as illegal sex stereotyping. Here, they take that logic one step further and hold that, when an employer disapproves of a lesbian employee’s orientation, he’s really objecting to the fact that a woman is romantically attracted to another woman. This objection is based on irrational, stereotyped views of femininity. Thus, when the employer discriminates against his lesbian employee, that discrimination is based in large part on her sex, and on his disapproval that she does not fit into her gender role.
The EEOC’s views on the scope of Title VII are considered persuasive, but not binding, authority in litigation. In the past, the common reasoning among district and federal courts is that “sexual orientation” is not among the list of prohibited bases for employment action, that Congress did not intend to eliminate antigay discrimination when it enacted Title VII and that all this is further proved by the fact that over a 30-year time period Congress has repeatedly refused to add “sexual orientation” to employment protections.
The EEOC fights for equality within the employment sphere and, to that end, the agency has heightened coverage of LGBT individuals under Title VII’s sex-discrimination provisions to one of six national priorities identified by EEOC’s Strategic Enforcement Plan. Not surprisingly, the next president will play a determining role in whether or not the EEOC’s ruling has a broader impact. That president could appoint EEOC members and Supreme Court justices who feel differently about the meaning of Title VII, and the opinion could be reversed. As with most civil-rights victories, the LGBT community must not become complacent and understand that, while this EEOC ruling is a huge victory, it is not etched in stone. Continued advocacy in the legal and political realms will solidify equal protection for all.