By Deryn Sumner

Although most of us interact with EEOC on the federal sector side of the house, EEOC is also responsible for investigating charges of discrimination filed against covered private sector employers and for filing lawsuits in U.S. District Court on behalf of employees if it finds discrimination but is unable to settle the case after making a finding. This month, EEOC announced that it has filed two lawsuits alleging that private sector employers subjected employees to sex based discrimination under Title VII because of their sexual orientation, a theory the Commission articulated in last year’s Office of Federal Operations’ decision, Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).

The first lawsuit is against Scott Medical Health Center and alleges that the employer subjected a male employee to harassment because of his sexual orientation, including subjecting the employee to anti-gay epithets and comments about his sexuality and sex life in the workplace. The suit alleges the employee’s supervisor did nothing to respond to the employee’s complaints of harassment and the employee quit after the conduct continued for weeks. The EEOC filed suit in the U.S. District Court for the Western District of Pennsylvania.

The second lawsuit is against IFCO Systems and is filed in the U.S. District Court for the District of Maryland, Baltimore Division. There, the lawsuit alleges that a supervisor made numerous comments to a lesbian employee regarding her sexual orientation, including, “I want to turn you back into a woman” and “you would look good in a dress.” The supervisor is also alleged to have blown a kiss at the employee and circled his tongue at her in a suggestive manner.  The employee was terminated just days after she called an employee hotline to complain about the harassment.

The EEOC’s decision to bring these lawsuits under a theory of sex discrimination continues its position articulated last year in Baldwin. In that decision, after lengthy analysis and detailing of the history of sex discrimination claims, EEOC concluded that as sexual orientation discrimination involves treating employees differently because of their sex, it should be considered sex based discrimination under Title VII. EEOC’s press release announcing these lawsuits references the Baldwin decision.  It also mentions the guide the Commission released in 2015, in conjunction with OPM, OSC, and the MSPB, for federal agencies on how to address sexual orientation and gender identity issues in the federal government, which we discussed in the June 2015 newsletter.

Using the concepts of sex stereotyping to argue sex-based discrimination is not a new theory. The Supreme Court’s decision from 1989 in Price Waterhouse v. Hopkins, 490 U.S. 228, held that the employer violated Title VII when it denied a promotion to Ann Hopkins for her lack of adherence to gender norms, including that she did not walk femininely, talk femininely, dress femininely, wear make-up, style her hair, or wear jewelry. EEOC has relied upon this theory that claims of an individual failing to identify to gender norms (such as marrying someone of the opposite sex, see Veretto v. USPS, EEOC Appeal No. 0120110873 (2011)) necessarily relate back to sex and are covered by Title VII.  We’ll be waiting to see how these district courts respond to the Commission’s theory. Sumner@FELTG.com

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