The Equal Employment Opportunity Commission (“EEOC”) sometimes announces its position on legal issues under Title VII. While the EEOC’s pronouncements are not binding on courts, they often have consequences on employers anyway because the EEOC is the government agency that decides whether or not an employee’s Charge of Discrimination with the agency has merit. Also, sometimes, courts give some degree of deference to the EEOC’s views. Recently, the EEOC made an announcements concerning its view of the law under Title VII concerning gay rights that merits attention from employers and employees.
Specifically, the Commission took the position that a claim of discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII, and is thus illegal. To prove its point, on March 1, 2016, the EEOC announced that it has filed its first two sex discrimination cases based on sexual orientation. The EEOC filed suit in the U.S. District Court for the Western District of Pennsylvania against Scott Medical Health Center, and, in a separate suit, in the U.S. District Court for the District of Maryland, Baltimore Division, against Pallet Companies, dba IFCO Systems NA.
In its suit against Scott Medical Health Center, EEOC charged that a gay male employee was subjected to harassment because of his sexual orientation. The agency said that the male employee’s manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life. When the employee 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, the employee quit rather than endure further harassment.
In its suit against IFCO Systems, EEOC charged that a lesbian employee was harassed by her supervisor because of her sexual orientation. Her supervisor 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 blew a kiss at her and circled his tongue at her in a suggestive manner, EEOC alleged. The employee complained to management and called the employee hotline about the harassment. IFCO fired the female employee just a few days later in retaliation for making the complaints, EEOC charged.
The EEOC’s General Counsel, David Lopez, stated, “[w]ith the filing of these two suits, the EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation.” Mr. Lopez further remarked that, “ [w]hile some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so.”
Since Title VII was passed in 1964 many federal courts have held that discrimination based on sexual orientation is not prohibited by Title VII. Accordingly, these two new cases are novel and will test out the EEOC’s recently announced position that, contrary to decades of case law holding otherwise, Title VII really does prohibit discrimination based on sexual orientation.