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EEOC files first sexual orientation discrimination lawsuits

March 1st, 2016  |  Pamela Wolf

By Pamela Wolf, J.D.

The EEOC announced the filing of its first two Title VII sex discrimination cases based on sexual orientation. On March 1, the agency filed a lawsuit in the Western District of Pennsylvania against Scott Medical Health Center, and, in a separate suit, filed a complaint in the District of Maryland, Baltimore Division, against Pallet Companies, dba IFCO Systems NA. The commission has been working for several years toward clearly establishing that sexual orientation discrimination offends Title VII. In both cases, the EEOC is seeking injunctive relief and compensatory and punitive damages.

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

Scott Medical Health Center. The EEOC asserts that Scott Medical Health Center subjected a gay male employee to harassment because of his sexual orientation. The employee was a telemarketer. His manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life, according to the complaint, including regularly calling him “fag,” “faggot,” “f***ing faggot,” “queer,” and saying “f***ing queer can’t do your job.” The manager allegedly made these highly offensive comments to the employee at least three to four time a week.

The employee complained to the clinic director, but the director purportedly said that the manager was “just doing his job,” and refused to take any action to stop the harassment, the EEOC said. After enduring weeks of the manager’s offensive comments, the employee allegedly quit rather than endure further harassment.

IFCO Systems. In its suit against IFCO Systems, the EEOC asserts that a lesbian forklift operator was harassed by her supervisor because of her sexual orientation. Soon after she was hired for the first shift, a supervisor asked her to start working the night shift, which she agree to do to earn extra money, according to the complaint.

Purportedly, the supervisor soon began making comments about the employee’s sexual orientation and appearance on a weekly basis, such as “I want to turn you back into a woman”; “I want you to like men again”; “You would look good in a dress”; “Are you a girl or a man;” and “You don’t have any breasts.” The complaint alleges that the supervisor once blew a kiss at the employee and circled his tongue at her in a suggestive manner.

The employee purportedly complained to the general manager and called the employee hotline about the harassment. After unsuccessfully pressing the employee to resign, IFCO fired her just a few days later in retaliation for making the complaints, according to the EEOC.

EEOC leading on sexual orientation discrimination. As the federal law enforcement agency charged with interpreting and enforcing Title VII, the EEOC has concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination. In a July 2015 federal sector decision, Baldwin v. Department of Transportation, the EEOC determined that sexual orientation discrimination is, by its very nature, discrimination because of sex. The commission explained the reasons why Title VII’s prohibition against sex discrimination includes discrimination because of sexual orientation: (1) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex, because sexual orientation as a concept cannot be understood without reference to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and (3) sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as their marital and other personal relationships.

Addressing emerging and developing issues—especially coverage of lesbian, gay, bisexual, and transgender individuals under Title VII’s sex discrimination provisions–is one of six national priorities identified by EEOC’s Strategic Enforcement Plan (SEP). The agency has posted materials on its website relating to coverage under Title VII for LGBT individuals. In addition, in June 2015, the Commission, in coordination with the Office of Personnel Management, Office of Special Counsel, and the Merit Systems Protection Board, developed a guide for federal agencies on addressing sexual orientation and gender identity discrimination in federal civilian employment.

EEOC v. Scott Medical Center is case No. 2:16-cv-00225-CB; EEOC v. Pallet Companies is case No. 1:16-cv-00595-RDB.