EEOC Takes Aim at Workplace LGBT Discrimination

By: Shelbie J. Byers, Drewry Simmons Vornehm, LLP

In a pair of landmark Complaints filed on March 1, 2016, the EEOC allege that a gay male employee and a lesbian employee were subjected to hostile work environments because of sex in violation of Title VII.  In U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center PC, Case No. 2:16-cv-00225-CB (W.D. Pa. March 1, 2016), the EEOC alleges that the employer engaged in unlawful sex discrimination when a gay male was subjected to a “continuing course of unwelcome and offensive harassment because of his sex (male)” in violation of Title VII of the Civil Rights Act of 1964.  In U.S. Equal Employment Opportunity Commission v. Pallet Companies d/b/a IFCO Systems, NA Inc., Case No. 1:16-cv-00595-RDB (D. Md. March 1, 2016), the EEOC alleged that a gay female forklift operator was subjected to unlawful sex discrimination where a night manager, who had asked the forklift operator to work some hours on the night shift, harassed her on a weekly basis with comments inquiring as to her gender and regarding her anatomy.  These lawsuits should come as no surprise to employers given the EEOC’s 2013-2016 Strategic Enforcement Plan, now in its final year, which identified a goal of addressing emerging and developing issues as a priority and specifically mentioned “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.”  While Title VII does not explicitly prohibit discrimination on the basis of sexual orientation, the EEOC alleges the conduct in question in these two cases was motivated by sex, “in that sexual orientation discrimination necessarily entails treating an employee less favorably because of his sex; in that [the employee], by virtue of his sexual orientation, did not conform to sex stereotypes and norms about males to which [the manager] subscribed; and in that [the manager] objected generally to males having romantic and sexual association with other males, and objected specifically to [the employee’s] close, loving association with his male partner.”  See Scott Medical Health Center P.C., supra.  While, Title VII does not explicitly cover sexual orientation, employers must be aware of their state and local laws related to LGBT rights in the workplace.

Best practices for an inclusive workplace including training and implementing policies establishing non-discrimination and strong anti-harassment provisions.  Compliance with Title VII requires that these policies prohibit discrimination and retaliation in the workplace on the basis of race, color, religion, sex and national origin.