By Deryn Sumner

In a decision issued on November 4, 2016, the U.S. District Court Judge in EEOC v. Scott Medical Health Center denied the defendant’s motion to dismiss the case and credited the EEOC’s argument that claims of sexual orientation discrimination are claims of sex discrimination under Title VII.  As we’ve talked about several times in this newsletter, the EEOC first articulated this argument in a decision issued by the EEOC’s Office of Federal Operations, Baldwin v. Department of Transportation, Appeal No. 0120133080 (July 15, 2015).

The defendant’s motion to dismiss centered on two arguments: first, that the EEOC’s lawsuit was untimely and that the EEOC failed to meet administrative procedural requirements prior to filing.  The District Court addressed each requirement in turn and found that the EEOC had complied with the necessary procedural requirements and timely initiated the lawsuit.

The defendant’s second argument was that the lawsuit failed to state a claim because Title VII does not prohibit discrimination on the basis of sexual orientation. Considering the EEOC’s response in opposition, the U.S. District Court judge distilled the argument to be “whether, but for Mr. Baxley’s sex, would he have been subjected to this discrimination or harassment. The answer, based on these allegations, is no.”  The complaint alleges that the employee’s supervisor subjected him to verbal slurs based on his sexual orientation and made offensive statements and asked highly intrusive questions of the employee regarding his sex life.

The District Court Judge’s decision addressed the prior Supreme Court precedent and noted the recent district court decisions in other jurisdictions before concluding, “That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and 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. Because this Court concludes 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,’ Defendant’s Motion to Dismiss on the ground that the EEOC’s Complaint fails to state a claim for which relief can be granted will be denied.”

The EEOC’s argument that sexual orientation claims are claims of sex discrimination under Title VII continues to be successful in district court litigation.  It remains to be seen if these efforts will be sidelined in the coming months by the incoming administration and Congress. Sumner@FELTG.com.

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