The Equal Employment Opportunity Commission (‘EEOC”) has been aggressively advancing its position that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation even though sexual orientation is not expressly identified as a protected class. More information on the EEOC’s position is available here. Recently, the United States District Court for the Western District of Pennsylvania agreed with the EEOC’s position. In, U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center, P.C., U.S. District Judge Cathy Bissoon concluded that discrimination based on sexual orientation is prohibited by Title VII.
In its complaint, the EEOC alleged that a former gay male employee who worked for Scott Medical in a telemarketing position, was subject to harassment, anti-gay epithets and a hostile work environment based on his sexual orientation.
In support of its arguments to dismiss the EEOC’s complaint, Scott Medical relied heavily on a prior Third Circuit case, Bibby v. Philadelphia Coca-Cola Bottling Co., which held that Title VII protections could not be extended to claims of discrimination based on sexual orientation. Despite this clear precedent, the court in Scott Medical stated that, “[i]ncremental changes have over time broadened the scope of Title VII’s protections of sex discrimination in the workplace” and “discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple.” The court went on to say that “[t]here is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.”
Judge Bissoon relied on the U.S. Supreme Court’s rationale in Price Waterhouse v. Hopkins, wherein the Supreme Court concluded that an employer who treats a woman differently on the basis of a belief that women should not be or cannot be aggressive, has engaged in sexual stereotyping and discrimination on the basis of gender. Judge Bissoon used this reasoning from Price Waterhouse to conclude 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’.”
So, what happens now based on the court’s decision in Scott Medical Health Center? Well, initially the case will proceed toward trial and an appeal to the Third Circuit may be forthcoming in the future. If appealed, the Third Circuit will likely be faced with reconsidering its prior decision in Bibby and other similar cases. Likewise, other courts throughout the country will be considering this same issue in the near future as the EEOC continues to champion the theory that Title VII prohibits discrimination based on sexual orientation.
In the meantime, employers should take a hard look at their Equal Employment Opportunity and Anti-Harassment policies, and consider adding sexual orientation and gender identity as protected classes. In addition, employers will need to response appropriately in the event of a complaint alleging harassment based on sexual orientation. It may also be a good idea to update your management training on this topic.