On March 1, 2016, the EEOC filed two cases with one clear goal: to expand the meaning of “sex” under Title VII. In EEOC v. Scott Medical Health Center, P.C., Case No. 2:16-cv-00225-CB (W.D. Pa.),  the agency alleges that the defendant harassed an openly gay male employee because of his sexual orientation, thereby committing unlawful sex discrimination under Title VII.  The Complaint suggests the employee’s manager repeatedly directed homophobic slurs at the employee, conduct the agency characterizes as “motivated by [the employee’s] sex (male), 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 [his manager] subscribed; and in that [his 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.”

In EEOC v. IFCO Systems, Case No. 1:16-cv-00595-RDB (D. Md.), the agency similarly alleges that an employer harassed an openly gay woman primarily because of her sexual orientation, citing nearly verbatim the above-quoted rationale.

The filings follow the EEOC’s recent efforts to expand the scope of employer actions made “because of . . . sex” – and, thereby, “sexual discrimination” and “sexual harassment” – under Title VII. In July of last year, for example, in the face of agency precedent, federal litigation, and the understanding of the legal community, the EEOC held that “sexual orientation is inherently a ‘sex-based’ consideration, and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”  Likewise, the EEOC has previously recognized gender identity and sex stereotyping claims as cognizable sex discrimination under Title VII.

Plaintiffs have begun to file suit for sexual orientation and gender identity as covered claims under Title VII, and the EEOC continues to join them in the effort by arguing the pronouncements of Baldwin.  In the past, the agency has had mixed success when persuading the courts to accept new interpretations of otherwise silent statutory protections.  It remains to be seen whether the EEOC’s interpretation will ultimately be upheld, and there will likely be constitutional challenges.  In the interim, employers must be mindful of the fervor with which the EEOC is pursuing such claims however they might be presented, and should reinforce all efforts against sexual orientation and gender identity discrimination and harassment in the workplace.

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