EEOC Files First Gender Bias Suits Based on Sexual Orientation

On March 1, 2016, in the case of EEOC v. Scott Medical Health Center, P.C., No. 2:16-cv-00225 (W.D. Penn. March 1, 2016), the Equal Employment Opportunity Filed one of the first suits alleging discrimination based on sexual orientation in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). Section 703(a)(1) provides that it is unlawful to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

While Title VII does not expressly prohibit discrimination based on sexual orientation, the EEOC claims that the Defendant violated the employee's rights on the basis of his sex, created a sexually hostile work environment, and unlawfully constructively discharged him in violation of the Statute.

In the Complaint, the EEOC alleges that the Defendant’s employees’ acts, including allowing and permitting a supervisor to call an employee a “fag,” “faggot,” and “queer,” violate Title VII and amount to unlawful discrimination. The EEOC contends that the supervisor's conduct directed at the employee was motivated by his sex (male), that sexual orientation discrimination necessarily entails treating an employee less favorably because of his sex that the employee, by virtue of his sexual orientation, did not conform to sex stereotypes and norms about males to which the supervisor subscribed; and in that the supervisor objected generally to Plaintiff’s lifestyle, causing a violation of Title VII.

The decision of the EEOC to take up such a case has been long expected since the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which held in a 5-4 decision that marriage is a fundamental right to same-sex couples under the Due Process and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. It will be interesting to see how this case and others filed concurrently move through the courts as the Supreme Court has not yet held that sexual orientation is a protected class when interpreting Title VII.