By Gerald L. Maatman, Jr., Sam Schwartz-Fenwick, Michael W. Stevens, and Kylie Byron

As we’ve been reporting in our blogs, the EEOC continues to pursue an expansive theory of discrimination.

It has taken the position that discrimination on the basis of sexual orientation and gender identity is prohibited sex-discrimination under Title VII of the Civil Rights Act of 1964.  On March 1, 2016, the EEOC put its proverbial money on the table and brought two lawsuits alleging sexual orientation discrimination.

These are novel, “first of their kind” lawsuits. Depending on one’s view, the EEOC either is trying to effectuate the policies underlying Title VII by seeking an expansive interpretation of the statute’s reach, or alternatively, using its powers to re-write the law and regulate employers through the threat of litigation.  Clearly, employers need to take notice of this development, and monitor the course of these lawsuits.

Case Background

The first case, EEOC v. Scott Medical Health Center, Case No. 2:16-CV-00225 [here], was filed in the U.S. District Court for the Western District of Pennsylvania.  The Commission alleges that a gay male employee was subjected to harassment from his supervisor, who allegedly made homophobic comments about the employee, his orientation, and his sex life.  Id. at 3.  The Commission further alleges that when the employee complained, management refused to take action, thus creating a hostile work environment that forced the employee to quit rather than be subjected to further harassment.  Id. at 4.

The second suit, EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc., Case No. 1:16-CV-00595 [here], was filed in the U.S. District Court for the District of Maryland on behalf of a lesbian employee.  The EEOC alleges that the employee’s supervisor harassed her, made comments about her gender, including that he would “turn [her] back into a woman,” and terminated her for reporting the harassment. Id. at 3-4.

The EEOC’s willingness to file lawsuits based on alleged sexual orientation discrimination is anchored on the rationale of its prior administrative decision in Baldwin v. Foxx, Appeal No. 0120133080 (EEOC July 15, 2015).  There, the EEOC found sexual orientation discrimination to be sex discrimination, as it relies on gender stereotypes as to how “real men” and “real women” should behave, and in so doing seeks to “enforce heterosexuality defined gender norms.” Id. at 3.  The EEOC further found it to be per se sex discrimination in that it involves treating an employee who loves a same-sex partner differently than how the employer would treat an employee who loved an opposite sex-partner.

Implications For Employers

To date,  no federal circuit courts have adopted the EEOC’s expansive interpretation of Title VII regarding sexual orientation discrimination, although a case which may provide some judicial guidance on this interpretation, Kimberly Hively v. Ivy Tech Community College, No. 3:14-CV-1791 (N.D. Ind. 2015), is currently pending before the Seventh Circuit.  The filing of these two suits, however, demonstrates that the EEOC intends to aggressively litigate its theory of Title VII.

Whether or not the federal district and circuit courts agree with the EEOC, employers should be aware that the EEOC is actively watching for potential discrimination cases on the basis of both sexual orientation and gender identity.  While many states and cities have laws and ordinances in place prohibiting sexual orientation and gender discrimination in employment, the EEOC is apt to target employers located in jurisdictions where the question of sexual orientation discrimination is not yet settled.  As such, even absent judicial authority, in light of EEOC guidance and legal actions regarding sexual orientation, employers should evaluate their policies, practices, and litigation risks.

Employers may wish to consider revising internal equal employment, non-discrimination and anti-harassment policies to include sexual orientation as protected categories, incorporating the topic of sexual orientation into EEO and harassment training programs, and changing health benefits to extend such coverage to same-sex spouses and/or domestic partners.

Stay tuned to this development, as we will continue to actively monitor developments in this space.