Wednesday, November 9, 2016

Federal court recognizes LGBT employment discrimination as illegal under Title VII

It’s been more than a year since the EEOC first announced that it would accept LGBT-discrimination charges as sex-discrimination charges under Title VII. Last week, the EEOC finally got a federal court to agree with its position in a LBGT-discrimination-is-sex-discrimination lawsuit.

EEOC v. Scott Medical Health Center (W.D. Pa. 11/4/06) [pdf] involves allegations of egregious harassment. The EEOC alleges that the manager of a gay male employee repeated referred to him using myriad anti-gay epithets and offensive comments about his personal life and sex life. The employer moved to dismiss the lawsuit, claiming that Title VII does not cover sexual-orientation discrimination. The federal court disagreed:
There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. … Indeed, the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two. It is, in the view of the undersigned, a distinction without a difference. Forcing an employee to fit into a gendered expectation – whether that expectation involves physical traits, clothing, mannerisms or sexual attraction – constitutes sex stereotyping … and violates Title VII.  
That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.
Needless to say, the EEOC is celebrating its victory, noting that the decision is consistent with its own interpretation of Title VII and its Strategic Enforcement Plan, which addresses emerging and developing issues, including coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions.

Where do we go from here? This is one decision of one federal district court. It is directly counter to a decision by the 7th Circuit Court of Appeals (which will receive an en banc rehearing in the near future). We are years away this case becoming the law of the land, either by Supreme Court decision or by legislative action (both of which now appear unlikely in the next four years).

Yet, the symbolism of this decision cannot be overstated. On this issue, I remain resolute that employers should ignore Title VII, ignore the EEOC, and ignore the courts, and just do what is right. It is incomprehensible that in 2016 an employer can legally fire someone because of who he or she loves, dates, or marries. Do right by all of your employees. Enact policies prohibiting LGBT discrimination in your workplace. Send the message that you are an employer of inclusion, not exclusion. As we wake up this morning as Americans, this message is more important than ever.