The prohibition against sex discrimination under Title VII of the Civil Rights Act extends to sexual orientation, Judge Cathy Bissoon of the Western District of Pennsylvania has ruled. EEOC v. Scott Medical Health Ctr., No. 16-225 (W.D. Pa. Nov. 4, 2016).

Complaint

The U.S. Equal Employment Opportunity Commission filed a complaint alleging that a manager from Scott Medical Center routinely made unwelcome and offensive comments to an employee based on his sexual orientation. The EEOC alleged the manager also would comment about the employee’s relationship with his partner, including questioning how the two men had sexual relations.

Motion Denied

Scott Medical Center filed a Motion to Dismiss based on (1) perceived procedural deficiencies in the suit and (2) failure to state a cause of action on the argument that Title VII does not prohibit discrimination on the basis of sexual orientation. Judge Bissoon squarely denied the Motion to Dismiss on both grounds.

The Court found the EEOC had satisfied is procedural prerequisites for filing suit by receiving a charge that alleged workplace discrimination, providing notice of the charge to Scott Medical Center, conducting an investigation, issuing a reasonable cause determination, and attempting to engage in conciliation efforts. The fact that the employee’s harassment claims were discovered during the course of an investigation into charges filed by other employees did not alter these prerequisites, the Court said.

The Court agreed the employee and the EEOC were able to make out the following theories for how the harassment was based on the employee’s sex:

(1) [the employee] was targeted because he is male, for had he been female instead of a male, he would not have been subject to discrimination for his intimate relationships with men; (2) [the employee] was targeted and harassed because of his intimate association with someone of the same sex, which necessarily takes [the employee’s] sex into account; and (3) [the employee] was targeted because he did not conform to his harasser’s concepts of what a man should be or do.

Relying on the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1998), the Court stated, “[T]here is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality . . . [and the Court found that] discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two.”

The Court rejected the argument that the U.S. Court of Appeals for the Third Circuit (which has jurisdiction over Pennsylvania) had ruled on the issues in Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001), and Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009). The Court noted the Third Circuit’s decisions were not dispositive — both because they were decided on different arguments and analytical frameworks, and because much of the case law precedent relied on in those cases either predated Price Waterhouse or merely accepted as a given that Title VII did not cover sexual orientation discrimination.

Instead, the Court noted the U.S. Supreme Court’s recent opinion legalizing same-sex marriage (Obergefell v. Hodges, 135 S.Ct. 2584 (2015)) demonstrated the illegality of discrimination on the basis of sexual orientation. The Pennsylvania court stated, “[T]hat someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms of conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.”

Implications

Title VII applies to all private sector and state and local government employers with at least 15 employees. Employers must be mindful that, in addition to the federal employment laws, there are 22 states’ laws that prohibit discrimination based on sexual orientation and 19 states that prohibit discrimination based on gender identity. Moreover, the EEOC has targeted jurisdictions in which LGBT (lesbian, gay, bisexual, and transgender) rights are not covered under state or local law.

Despite the recent presidential election, there is no indication the EEOC will stop prioritizing LGBT cases, and the Commission has included LGBT rights as part of its 2017-2021 Strategic Enforcement Plan.

In addition, federal contractors and federally assisted construction contractors who entered into or modified contracts on or after April 9, 2015, are subject to Executive Order 13672. The EO prohibits employment discrimination based on gender identity or sexual orientation. (See our article, DOL Releases Regulations Extending Protections to Lesbian, Gay, Bisexual, and Transgender Employees, Applicants.)

Employers should monitor federal and state laws and court decisions and ensure their policies and handbooks include sexual orientation and gender identity as protected groups and their harassment prevention training covers LGBT forms of harassment and discrimination.