LEGAL
At the beginning of March, the Equal Employment Opportunity Commission (EEOC) announced that it had filed its first two lawsuits challenging sexual orientation discrimination as sex discrimination. The cases, EEOC v. Scott Medical Health Center and EEOC v. Pallet Companies, d/b/a IFCO Systems NA, respectively deal with workplace discrimination by employers against two gay employees.
The first case relates to harassment of a gay male by his supervisor, who subjected the former to “unwelcome and offensive comments” relating to his sexuality “at least three to four times each week.” The second case similarly involves harassment of a lesbian by her night shift manager; after “weeks of enduring [the manager’s] comments and behavior,” the employee complained to her supervisor, “but no action was taken.”
The filing of these two cases is an obvious legal milestone, made clear by the agency’s announcement: It demonstrates the agency’s willingness to target sexual orientation discrimination as sex discrimination under Title VII. What this means for employers is that they must now have explicit policies against such discrimination – just as they would for any other discrimination prohibited by Title VII.
Title VII – that is, Title VII of the Civil Rights Act of 1964 – proscribes employers from discriminating against an employee (current or prospective) on the basis “of such individual’s race, color, religion, sex, or national origin.”
Observers of EEOC actions and policy changes may have been expecting this, since it seems to advance the Commission’s Strategic Enforcement Plan, a notable part of which is “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” under the plan’s “National Priority” of “Addressing Emerging and Developing Issues.”
Further, many observers would claim that these cases were all but inevitable, specifically because of last summer’s Baldwin v. Department of Transportation, a ruling by the EEOC itself. Baldwin marks the point at which the EEOC explicitly broadened “sex discrimination” to include “sexual orientation discrimination,” and the EEOC explained in Baldwin because it necessarily entails treating an employee less favorably because of the employee’s sex.
In short, “[s]exual orientation discrimination is sex discrimination,” according to the EEOC, and employers must ensure that they remain compliant with this expanded definition of sex discrimination as they would prior to these EEOC actions.
Naturally, this translates to proactively minimizing the risk of discrimination by another employee through measures such as trainings and approachable reporting methods. However, the EEOC stresses that Title VII “prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals” because of their sex.
As such, many employers may need to conduct a review of their policies that may impact sexual orientation to make certain that these policies do not inadvertently discriminate against employees because their sexual orientation. Because of the recentness of the recognition of discrimination based on sexual orientation, at least relative to the more historical forms for sex discrimination, it may be difficult for many employers to immediately discern which of their policies could potentially pose problems in this regard.
To ameliorate this problem, open and receptive reporting channels are once again important: Employees should be made to feel welcome to report their concerns with both other employees and company policies before these concerns have a chance to escalate into something beyond the boundaries of the organization’s management.
Finally, although the EEOC’s Strategic Enforcement Plan terminates at the end of 2016 (not coincidentally, shortly before the Obama administration’s tenure ends), it’s unlikely that these changes will disappear along with it, given current social and political climates. Thus, companies would be prudent to adapt to the Commission’s new definition as soon as possible – not only to minimize regulatory risk, but also to foster a more hospitable working environment.
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