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Does Title VII Prohibit LGBTQ Discrimination? The EEOC Says Yes.

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This week, the U.S. Equal Employment Opportunity Commission filed its first ever lawsuits against private employers for unlawful sexual orientation discrimination in employment. Although long-anticipated, the lawsuits are part of a major effort by the EEOC to break new ground in the world of employment discrimination, specifically with respect to LGBTQ rights in the workplace.

EEOC SealNew test cases for LGBTQ employment discrimination

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. One does not have to be an especially careful reader to notice that “sexual orientation” is not explicitly listed as one of those protected categories. Ohio’s anti-discrimination law, Chapter 4112, essentially contains (and omits) the same language as Title VII. For more than a decade, however, LGBTQ employees in Ohio and elsewhere have tried unsuccessfully to bring sexual orientation discrimination claims using Title VII’s ban on “sex” discrimination. Federal courts have uniformly rejected these cases, with one limited set of exceptions I’ll address below.

A few years ago, the EEOC—the federal agency Congress tasked with interpreting and enforcing Title VII—began stating its belief that discrimination on the basis of sexual orientation is prohibited by Title VII’s ban on “sex” discrimination. The EEOC had not put that interpretation to the test in federal court until this week, when it announced the filing of two separate Title VII cases against private employers, alleging sexual orientation discrimination.

In the first case, the EEOC alleges that Scott Medical Health Center in Pittsburgh subjected a gay male employee to harassment because of his sexual orientation. The Complaint alleges that the employee’s manager repeatedly used anti-gay slurs towards the employee and made other pejorative comments about his sex life. When the employee complained, the EEOC says, the Health Center refused to take any action to stop the harassment. The employee then resigned rather than endure further harassment. The case is pending in the U.S. District Court for the Western District of Pennsylvania.

In the second case, the EEOC sued IFCO Systems in the U.S. District Court for the District of Maryland, claiming that a supervisor harassed a lesbian employee because of her sexual orientation. According to the suit, the supervisor made repeated comments about the employee’s orientation and appearance, including “I want to turn you back into a woman.” The employee complained to management, and the company fired her just a few days later.

Some protections for LGBTQ employees already exist

Before addressing the prospects for these two potentially groundbreaking lawsuits, it is important to point out that LGBTQ employees are not completely lacking in workplace discrimination protections, as I’ve previously written about.

Public sector employees are protected from sexual orientation discrimination in a couple ways. First, for federal employees and employees of federal contractors, there are executive orders prohibiting sexual orientation discrimination in employment. Second, the Equal Protection Clause of the Fourteenth Amendment prohibits arbitrary employment discrimination against public sector employees on the basis of sexual orientation, whether they are employed by federal, state, or local governments. One of the first cases reaching that conclusion was issued a few years ago by a federal judge in Cleveland.

In the private sector, the protections for public employees addressed above do not apply, so it is a little bit more challenging for LGBTQ victims of discrimination to vindicate their rights. One avenue that has found success is what’s called a “sex stereotyping” claim. In 1989, the U.S. Supreme Court held in a case called Price Waterhouse Coopers v. Hopkins that Title VII’s ban on “sex” discrimination prohibits employers from discriminating against employees because they fail to conform to the traditional gender norms for their biological sex. Based on that holding, LGBTQ employees have been able to successfully pursue claims that they suffered workplace discrimination, not because of their sexual orientation, but because their appearance, mannerisms, or dress were either not “masculine” enough or not “feminine” enough in the eyes of their employers. Many of these cases have involved transgender employees, including an important case from Ohio called Smith v. City of Salem. Of course, these claims will not avail gay, lesbian, or bi-sexual employees who do conform to traditional gender norms. For those employees, there may still be a possible claim under Ohio common law claim for what is known as “wrongful discharge in violation of public policy.” But these claims are notoriously tricky, and difficult for employees to win.

Will the EEOC’s new theory succeed?

If courts end up agreeing with the EEOC that Title VII does prohibit sexual orientation discrimination, the protections for LGBTQ employees in Ohio and elsewhere will instantly become more robust. That being said, I think the EEOC has a tough road ahead of it on these newly filed cases. For one thing, it seems fairly certain that Congress did not intend to prohibit sexual orientation discrimination when it referred to discrimination on the basis of “sex.” In fact, for more than a decade now, there have been repeated efforts in Congress to amend Title VII to add “sexual orientation” to its list of protected categories. Each has failed. And as I mentioned above, the EEOC is swimming against a strong (and unanimous I believe) current of cases in federal courts holding that sexual orientation is not covered by Title VII.

The EEOC’s argument is not without a glimmer of hope though. In a nutshell, the EEOC’s argument is that sexual orientation as a concept cannot be understood without reference to sex. That does make some inherent sense. In addition, the EEOC argues, discrimination on the basis of sexual orientation is necessarily tied to non-conformance with traditional gender norms, which the Supreme Court has already declared to be prohibited by Title VII. Significantly, because Congress delegated authority for interpreting Title VII to the EEOC, its opinion is entitled to some deference by the courts. It is possible a court would defer to the EEOC’s interpretation here. The current vacancy on the Supreme Court only increases the likelihood that the EEOC might ultimately prevail—depending on who fills that vacancy.

Regardless of whether the EEOC prevails in its significant effort to bring LGBTQ employees within the protections of Title VII, arbitrary sexual orientation discrimination has no place in the workplace. Ohio employees who believe they have been discriminated against on the basis of their sexual orientation do have some potential options, even if they are limited by the current state of the law. To determine if your rights have been violated, contact the Cleveland employment discrimination lawyers at Bolek Besser Glesius LLC today for a free consultation.

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About Matthew Besser

Matthew D. Besser defends the rights of individuals in employment discrimination, civil rights, and constitutional law cases.

Matt is a former federal appellate law clerk, and an adjunct law professor at Case Western Reserve University. He is also a frequently invited speaker on an array of legal topics. Recognized for his accomplishments in the legal field, Matt holds the prestigious Martindale-Hubbell “AV Preeminent”® rating. Twice, U.S. News and World Reports has named him to its list of Cleveland employment law “Best Lawyers.” And Super Lawyers Magazine has named him a “Super Lawyer” for employment law in Cleveland four times. Twice before that, the Magazine named him one of its “Rising Stars.”

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