On November 4, 2016, a federal judge in Pennsylvania became the latest jurist to side with the U.S. Equal Employment Opportunity Commission (EEOC) in endorsing the viability of claims based on sexual orientation under Title VII of the Civil Rights Act of 1964. In U.S. EEOC v. Scott Medical Health Center, the EEOC brought suit on behalf of a gay male employee based on a sexually hostile work environment allegedly caused by his male supervisor. During the EEOC’s investigation into charges filed by the employee’s co-workers, the agency learned of sex-based comments being directed towards the employee, including terms such as “f*g” and “f****t” and comments like “I always wondered how you f*gs have sex.” The EEOC ultimately filed suit based on this conduct after conciliation efforts failed.
The employer moved to dismiss the suit, arguing that “Title VII does not prohibit discrimination based on sexual orientation” and pointing to Third Circuit precedent which had refused to extend Title VII’s protections to claims based solely on sexual orientation. While the court could have simply relied on this precedent and dismissed the case, the court found that the prior precedent was not dispositive and analyzed the claims in light of the evolving understanding of Title VII’s “because of sex” language over the years.
Citing Price Waterhouse v. Hopkins and other cases, the court noted that the U.S. Supreme Court has expanded the scope of protections against sex discrimination by applying a broad interpretation to the statute’s “because of sex” language. Specifically, the court found “no meaningful distinction between sexual orientation discrimination and discrimination ‘because of sex.’”
The court went on to note that “[t]here is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.” More pointedly, the court concluded that “[f]orcing an employee to fit into a gendered expectation – whether that expectation involves physical traits, clothing, mannerisms or sexual attraction –constitutes sex stereotyping and, under Price Waterhouse, violates Title VII.”
In holding that the prior Third Circuit precedent was not dispositive, the court emphasized that the Third Circuit had not considered the question of whether sexual orientation discrimination is a form of sex stereotyping. Nor did the Third Circuit consider the idea that the claims could continue a form of associational discrimination.
This decision follows on the heels of other courts taking a fresh look at precedents that had given short shrift to the idea that sexual orientation claims could be viable under Title VII. In fact, the Seventh Circuit recently withdrew for an en banc review a panel decision that relied on prior precedent in holding that Title VII did not cover sexual orientation claims. That decision had essentially begged Congress or the U.S. Supreme Court to give courts guidance in considering these cases. It seems likely that the full Seventh Circuit will overturn its prior precedent and join the growing list of courts sustaining the viability of these claims.
In sum, absent Congressional or U.S. Supreme Court action to the contrary, it is anticipated that additional courts around the country will continue to recognize the viability of sexual orientation claims under Title VII.
