On March 1, 2016, the Equal Employment Opportunity Commission (EEOC) issued a press release announcing that it had filed its first two sexual orientation discrimination claims against private sector employers. Each of these lawsuits allege violations of Title VII of the Civil Rights Act of 1964 (Title VII). The EEOC’s theory is that since Title VII prohibits discrimination and retaliation because of an individual’s sex – harassment or retaliation because of an individual’s sexual orientation is also unlawful.

In EEOC v. Scott Medical Health Center, P.C., the EEOC alleges that a homosexual male employee was subject to a sexually hostile work environment under Title VII based on offensive phrases and comments about his sexuality and sexual behavior by his telemarketing manager. Allegedly, the comments continued even after the employee filed an internal complaint.

In EEOC v. Pallet Companies d/b/a IFCO Systems NA, the EEOC alleges that a homosexual female employee was harassed by her night shift supervisor because of her sexual orientation and accordingly, was forced to endure various insults about her sexual orientation and appearance. The EEOC alleges that the employee complained to management and the employer allegedly retaliated by firing her.

Employers should note that the filing of these lawsuits alone will likely trigger increased litigation in this area. In fiscal year 2015, the EEOC received 1,412 charges alleging sexual orientation or gender identity discrimination. Accordingly, prudent employers should:

• Review the recent publication by the EEOC entitled “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers” and discuss any questions you may have with counsel.
• Consider engaging counsel to perform harassment and retaliation training for employees and managers alike with a focus on sexual orientation and transgender status due to the EEOC’s increased focus in these areas.
• Immediately consult counsel in the event that any person has complained to anyone in your organization about harassment on the basis of sex, sexual orientation status or any Title VII protected characteristic.
• Ensure that harassment, EEO and other employer policies are updated and afford specific details about the reporting structure within your organization and includes specific language about when the alleged harasser is the employee’s supervisor.