The area of LGBT rights in the workplace has garnered a great deal of attention in recent years as a split has grown among the courts and among federal agencies as to whether Title VII prohibits sexual orientation discrimination. Under the Obama Administration, the Department of Justice argued that Title VII’s prohibition on sex discrimination also included sexual orientation and gender identity.  Recently, however, the Trump Administration’s Department of Justice filed an appellate brief in the Court of Appeals for the Second Circuit in which it argued that Title VII does not apply to sexual orientation.

This places the Department of Justice at odds with the Equal Employment Opportunity Commission, which continues to assert that Title VII prohibits discrimination based on employee’s sexual orientation and gender identity.

According to the EEOC’s website, for fiscal year 2016 (October 1 through September 30), 1,768 charges were filed that included allegations of sexual orientation and/or gender identity/transgender status. This figure represents a 25% increase in charges involving this type of discrimination from the prior fiscal year.

Beginning with its Strategic Enforcement Plan for fiscal years 2013 to 2016, the EEOC made coverage of LGBT individuals under Title VII a top enforcement priority. This enforcement priority has continued into the EEOC’s Strategic Enforcement Plan that is presently in effect for fiscal years 2017 to 2021.

A significant case out of the United States District Court for the Western District of Pennsylvania – EEOC v. Scott Medical Health Center, P.C. – is a product of the EEOC’s enforcement priority of addressing LGBT discrimination-related issues.  On March 1, 2016, the EEOC filed suit against Scott Medical Health Center on behalf of Dale Massaro, a former telemarketer for the company.  The complaint alleged that Scott Medical Health Center constructively discharged Massaro due to a sexually hostile work environment that the telemarketing manager perpetuated.  This manager allegedly made offensive comments to Massaro, who is gay, about his sexuality and relationships several times a week.  When Massaro complained about the manager’s conduct to the CEO of Scott Medical Health Center, the CEO refused to take any action and said that the manager “was just doing his job.”  Massaro eventually decided to quit his job and began to suffer from depression, anxiety, and weight gain.

In November 2016, Judge Cathy Bissoon denied Scott Medical Health Center’s motion to dismiss the complaint. In her decision, Judge Bisson concluded that “discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination ‘because of sex.’”

The EEOC and Massaro went on to a successful outcome in this case. After entering a default judgment on liability in favor of Massaro, Scott Medical Health Center was ordered to pay $55,000 in back pay, compensatory damages, and punitive damages to Massaro on November 16, 2017.  Compensatory damages and punitive damages were limited to $25,000 each, respectively, due to the statutory damages cap on the aggregate amount awarded for compensatory damages for emotional distress and punitive damages.

Given the unusual split between the Department of Justice and the EEOC, employers do not have any clear guidance as to whether sexual orientation and gender identity discrimination are illegal under federal law. This issue is not likely to be decided until Congress amends Title VII or the Supreme Court weighs in.  Neither is likely to occur soon.  Therefore, the most conservative practice for employers to follow is to consider sexual orientation and gender identity to be protected classes in the same way that age, race, gender, and religious affiliation have been for years.