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EEOC cases alert employers to sexual orientation bias

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The Equal Employment Opportunity Commission's move last week to file two sex discrimination cases based on sexual orientation, which were long expected, should put employers on the alert for continued EEOC litigation on this issue although its success could depend on where its cases are filed, say legal experts.

The agency has previously indicated its position that Title VII of the Civil Rights Act of 1964 protects workers against sexual orientation discrimination, although federal laws do not explicitly prohibit it.

The agency said in a statement that it filed one lawsuit against Pittsburgh-based Scott Medical Health Center P.C. in U.S. District Court in Pittsburgh, charging that the medical center had subjected a gay male employee to harassment because of his sexual orientation. The other lawsuit, filed in U.S. District Court in Baltimore, charged Houston-based Pallet Cos. Inc. with harassing a lesbian employee.

In the medical center case, the EEOC said the unnamed male employee's manager repeatedly referred to him using various anti-gay epithets and other offensive comments about his sexuality and sex life. The agency said the employee quit rather than endure further harassment.

In the Baltimore case, the EEOC said the unnamed employee's supervisor made numerous comments regarding her sexual orientation and appearance, such as “I want to turn you back into a woman.” The employee was fired a few days after she complained, according to the agency.

Both lawsuits charge violation of Title VII of the Civil Rights Act of 1964.

“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,” said EEOC General Counsel David Lopez in the statement. “While some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so.”

Spokesmen for Scott Medical and Pallet did not respond to request for comment.

In January, the EEOC had argued, in a brief submitted to the 11th U.S. Circuit Court of Appeals in Atlanta in support of the plaintiff in Barbara Burrows v. The College of Central Florida, that Title VII of the Civil Rights Act of 1964 protects workers against sexual orientation discrimination, although federal laws do not explicitly prohibit it.

Ms. Burrows, a lesbian college professor and administrator, who had been hired by the College of Central Florida in Ocala as its vice president for instructional affairs in 2008, filed suit on charges including gender stereotyping after her position was eliminated in a reduction in force in March 2013, according to the EEOC's brief.

Also in July 2015, in what was hailed as a historic development, the EEOC held in a 3-2 ruling that workplace sexual orientation is illegal under federal law.

Experts note also that, although there have been no explicit federal laws on the issue, a number of states and other jurisdictions, including for instance, both New York State and New York City, have already adopted laws that hold sexual orientation is an expressly protected characteristic.

The EEOC is “trying to expand (Title VII) to include a new basis of protected characteristic,” said Arlene Switzer Steinfield, senior counsel at Dykema Gossett P.L.L.C. in Dallas. “The statute is very specific in what is prohibited,” she said.

Ms. Steinfield said she believes the EEOC may be successful in its pursuit of the most recent litigation. “They've picked two cases that have the best chance of success,” she said. “There's a saying that bad facts make bad law and (the EEOC has) picked really bad facts” to support its position in these cases, she said, referring to the way the employees in these cases had allegedly been treated she said.

Mark T. Phillis, a shareholder with Littler Mendelson P.C. in Pittsburgh, said the EEOC's success overall on the issue will depend on the particular circuit.

He also pointed to the U.S. Supreme Court's 1989 ruling in Price Waterhouse vs. Hopkins which held that a woman who was viewed as being too masculine can rely on gender stereotyping evidence to show that discrimination occurred.

“That may be an easier argument to make … without the broader argument that the language of Title VII protects for discrimination based on orientation,” Mr. Phillis said.

Ms. Steinfield said she has been advising her clients to train their supervisors to understand that “epithets related to homosexuality, or inquiries about the homosexual's sex life” are unacceptable in the workplace “and if the supervisors see anything of that nature going on, they need to take a very tough stance” and discipline the perpetrators. “It's the right thing to do,” even if it not yet legally required, she said.