lklibanow@lindaklibanow.com
(626) 204-4000

Landmark EEOC Suits Allege Sexual Orientation Discrimination As Sex Discrimination Under Title VII

The EEOC announced in a press release today the filing of its first two suits challenging sexual orientation discrimination as sex discrimination.  One, on behalf of Dale Baxley, was filed in the Western District of Pennsylvania against Scott Medical Health Center, and the other, on behalf of Yolanda Boone, was filed in the District of Maryland, Baltimore Division, against Pallet Companies dba IFCO Systems NA.

Last year, in a federal sector decision, EEOC had determined that sexual orientation discrimination by its very nature is discrimination because of sex, explaining that (i) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex; (ii) sexual orientation discrimination is rooted in noncompliance with sex stereotypes and gender norms which Title VII has long prohibited, and; (iii) sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex.  EEOC General Counsel David Lopez remarked upon the filing of the suits that “EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation.”  While noting that some federal courts have begun to recognize this right under Title VII, “it is critical that all courts do so,” Lopez said.  Addressing rights of lesbian, gay, bisexual and transgender individuals under Title VII is one of six national priorities identified by EEOC’s Strategic Enforcement Plan.

Each case was filed following efforts to reach pre-litigation settlement through EEOC’s conciliation process. Each suit alleges egregious hostile work environment harassment including ongoing verbal harassment by a manager or supervisor.  In the Scott Medical Health Center case, the complaint alleges the plaintiff employee’s constructive termination; in the IFCO case, the suit alleges that, following the plaintiff’s seriatim complaints to a higher supervisor, the general manager, and the human resources department, she was asked to resign and, when she wouldn’t resign, was fired and escorted off premises by the police.

Of course, unlike Title VII, California Government Code Section 12940(a) expressly prohibits discrimination on the bases of “sexual orientation,” “gender identity” and “gender expression.”