Federal District Court Joins Equal Employment Opportunity Commission In Holding Sexual Orientation Discrimination Is A Form Of Sex Discrimination
In 2015 the EEOC expanded its interpretation of discrimination “because of sex” to include sexual orientation discrimination. See Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080. A federal district court is now in agreement. In a decision announced on November 4, 2016, the U.S. District Court for the Western District of Pennsylvania held that Title VII prohibits sexual orientation discrimination. EEOC v. Scott Med. Health Center, P.C., Case No. 2:16-cv-225. The lawsuit alleged that a gay male employee was subjected to sexual harassment because of sexual orientation. The District Court concluded the lawsuit could go forward based on U.S. Supreme Court opinions holding that unlawful sex discrimination includes harassment based on “sex stereotypes”, such as pre-conceived ideas of how a man or a woman should act or think.
The employee was regularly called a “fag,” “faggot,” and “queer,” and subjected to statements such as “I always wondered how you fags have sex,” “I don’t understand how you f—king fags have sex,” and “who’s the butch and who is the bitch.” The District Court viewed the pertinent question being whether, but for the employee’s sex (being a male), would he have been subjected to this discriminatory harassment. The court answered no and concluded that Title VII applies.
The District Court distinguished the case from decisions of other federal courts holding that “Title VII does not prohibit discrimination on the basis of sexual orientation.” Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001). The District Court noted that Bibby did not address sex stereotyping and merely accepted as a given that Title VII did not cover sexual orientation rather than offer analysis to differentiate discrimination “because of sex”, which is prohibited by Title VII, from discrimination because of sexual orientation.
The position of the Court of Appeals for the Sixth Circuit, covering Ohio, Kentucky, Michigan, and Tennessee, is that Title VII does not prohibit discrimination based on sexual orientation. Vickers v. Fairfield Medical Center, 453 F.3d 757, 763-764 (6th Cir. 2006). The Vickers Court concluded that discriminatory conduct aimed at an employee’s sexual orientation is not because the employee is a man or a woman, and therefore is not “because of sex”, which is prohibited by Title VII. Id. In contrast to the Scott Med. Health Center decision, in the Sixth Circuit a claim of gender stereotyping cannot be used to “bootstrap” protection for sexual orientation into Title VII. Id.
As matters currently stand, the Sixth Circuit still does not interpret federal law to prohibit employment discrimination because of sexual orientation. However, the Scott Med. Health Center decision represents a significant departure from previous federal court decisions, and may indicate a change in attitude is taking place as to the applicability of Title VII to sexual orientation cases. That change in attitude has been progressing on a state level, where sexual orientation discrimination is prohibited in many localities by municipal ordinance.
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