The Gavel

   March, 2016
   Volume 5


 Jennifer Chang, Associate
Ms. Chang handles employment and commercial litigation with the firm.

EEOC Files Sexual Orientation
Discrimination Suits under Title VII


On March 1, 2016, the Equal Employment Opportunity Commission (“EEOC”) filed its first two suits alleging discriminatory employment practices based on sexual orientation. The complaints are premised on the EEOC’s theory that discrimination based on sexual orientation is covered under Title VII prohibitions against sex discrimination because sexual orientation discrimination necessarily involves: 1) less favorable treatment of an employee because of the employee’s sex; 2) discrimination based on the employee’s association with a person of a certain sex; and 3) discrimination based on gender stereotypes. Baldwin v. Dep't of Transp., Appeal No. 0120133080 (July 15, 2015). 

In U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center, P.C., Case No. 2:16-cv-00225-CB (W.D. Pa. Mar. 1, 2016), the EEOC contends that the employer violated Title VII’s prohibition against sex discrimination by subjecting a gay male employee to a “continuing course of unwelcome and offensive harassment because of his sex (male).” The employee’s manager allegedly routinely made explicit and offensive anti-gay statements to the employee. The EEOC also argues that the employee was constructively discharged – when the employee reported the harassment, no corrective action was taken, and the employee eventually resigned.

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. Mar. 1, 2016), the EEOC argues that a lesbian employee was subjected to unlawful sex discrimination by the night shift manager because of her sexual orientation. The manager allegedly harassed her by making suggestive gestures and statements about her gender and anatomy. After the employee allegedly complained to management, her employment was terminated. The EEOC argues that this termination was retaliatory in nature.

Some courts have recognized that discrimination based on gender stereotyping is unlawful sex discrimination under Title VII. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), Price Waterhouse denied a female employee a promotion at least partly because her supervisors believed she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." Id. at 235. The Supreme Court held that where an employee’s nonconformity with gender stereotypes played a part in an employment decision, the employer had to show by a preponderance of the evidence, that it would have made the same decision absent “unlawful motive.” Id. at 250. In Oncale v. Sundowner Offshore Services, 523 U.S. 75 (l998), the Court held that same-sex harassment is sex discrimination under Title VII because Title VII prohibits “‘discriminat[ion] . . . because of . . . sex.'  [This] . . . must extend to [sex-based] discrimination of any kind that meets the statutory requirements." Id. at 79 – 80. In EEOC v. Boh Bros. Constr. Co. LLC (5th Cir. 11-30770), the Appellate Court held that a plaintiff alleging same-sex harassment can show that the subject conduct was sex discrimination by showing it was motivated by the harasser's perception that the plaintiff did not adhere to gender stereotypes. 

For more information, please contact:
Linda Wong, Partner at Wong Fleming
821 Alexander Road, Suite 200, Princeton, N.J. 08540

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