Nicholas Malfitano Mar. 4, 2016, 10:05am


WASHINGTON – The United States Equal Employment Opportunity Commission (EEOC) announced Tuesday it filed its first federal sex discrimination lawsuits based on sexual orientation.

The EEOC’s Philadelphia District Office filed suit in the U.S. District Court for the Western District of Pennsylvania against Scott Medical Health Center of Pittsburgh, and, in a separate suit, in the U.S. District Court for the District of Maryland’s Baltimore Division against Pallet Companies, which does business as IFCO Systems NA.

Per its lawsuit versus Scott Medical Health Center, the EEOC claimed a gay male employee was harassed because of his sexual orientation. The agency said the male employee’s manager repeatedly used anti-gay language in reference to him and made other offensive comments about his sexuality and sex life.

According to the lawsuit, when the employee in question complained to the clinic director, the director responded the manager was “just doing his job,” and did not act to put a stop to the harassment. Following weeks of these alleged comments from the manager, the employee quit instead of being subject to further harassment.

In the action against IFCO Systems, the EEOC charged a lesbian employee was harassed by her supervisor, also because of her sexual orientation. Per the suit, 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.

At one point, the supervisor allegedly “blew a kiss at her and circled his tongue at her in a suggestive manner.” The employee in question complained to management and called an employee hotline about the harassment, but the EEOC’s suit said IFCO fired the female employee several days later, supposedly in retaliation for making the complaints.

According to Title VII of the Civil Rights Act of 1964, sex-based discrimination in the workplace is illegal. It is the EEOC’s view that harassment and other discrimination because of sexual orientation qualifies as prohibited sex discrimination.

Both lawsuits were brought under Title VII, which prohibits discrimination on the basis of sex, as well as retaliation. In both the case against Scott Medical Health Center (Case 2:16-cv-00225) and the case against IFCO Systems (Case 1:16-cv-00595), the EEOC made initial attempts at pre-litigation settlement before filing suit.

In a decision reached last July, the EEOC determined that sexual orientation discrimination is, by its very nature, discrimination because of sex.

“With the filing of these two suits, EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation,” EEOC General Counsel David Lopez said. “While some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so.”

Robin E. Shea, of Constangy Brooks Smith & Prophete in Winston-Salem, N.C., is both a firm partner and attorney with more than 20 years of experience in employment discrimination litigation, specifically regarding Title VII and other related legislation. Shea commented on the EEOC’s filing of both lawsuits.

“Historically, the EEOC took the position that Title VII did not cover sexual orientation or gender identity,” Shea said. “In the last couple of years, they’ve taken a more expansive view of the Title VII sex discrimination prohibitions, and they’ve changed their position.”

Shea said the EEOC’s new stance with respect to gender identity is that discrimination on that basis is a form of “sex stereotyping” and also illegal.

“Their position is that it’s a form of sex discrimination,” Shea added. “I think the EEOC has been looking for an opportunity to expand Title VII to include sexual orientation, but they hadn’t really had an opportunity to do it until recently.”

Shea labeled this position as a “new interpretation” of Title VII, and an attempt on the part of the EEOC to update the view of the law for modern times.

Shea stated the Employment Non-Discrimination Act, a separate law under consideration in the U.S. Congress for more than 20 years without passage, would have covered sexual orientation-based discrimination if adopted.

“The EEOC may also just be thinking, well, here’s a way to get sexual orientation protected,” Shea said.

Shea said if both of the EEOC’s lawsuits proceed to a judicial resolution, they have the potential for “significant precedential effect” in future interpretation of Title VII.

“It’s very possible that the employers in these cases will go ahead and settle,” Shea said. “A lot of employers really don’t want to fight this, and a lot of employers already have their own company policies prohibiting discrimination based on sexual orientation. If they feel one of their employees violated those policies, I think they’d be inclined to settle the case. It could be that these two cases will settle way before we have any kind of judicial decision.”

With Pennsylvania included as part of the U.S. Court of Appeals for the Third Circuit and Maryland included in the U.S. Court of Appeals for the Fourth Circuit, Shea said the new EEOC cases may influence similar litigation years down the road in those jurisdictions.

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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