EEOC Suits Allege Title VII Covers Sex Orientation Bias

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By Kevin McGowan

March 1 — The Equal Employment Opportunity Commission has filed its first two lawsuits against private employers alleging that sexual orientation discrimination is unlawful sex bias under Title VII of the 1964 Civil Rights Act, the agency announced March 1.

The lawsuits mark the EEOC's first court cases against private employers for alleged sexual orientation discrimination. However, since fiscal 2013, the EEOC has been accepting and investigating private sector bias charges alleging discrimination based on sexual orientation.

The agency last year ruled in a case involving a gay federal employee that sexual orientation discrimination is “inherently” sex bias under Title VII . In January, the EEOC filed two amicus briefs in the U.S. Court of Appeals for the Eleventh Circuit making the same argument in cases involving state and local government employers .

During the past two weeks, EEOC General Counsel P. David Lopez and EEOC Commissioner Chai Feldblum each hinted the agency soon would file a private sector lawsuit alleging sexual orientation bias as a Title VII violation .

EEOC Testing the Courts

The EEOC's action “wasn't entirely unanticipated” given its stated enforcement emphasis on advancing arguments that Title VII bars discrimination based on sexual orientation and gender identity, said Mark Phillis of Littler Mendelson in Pittsburgh, who represents employers.

The EEOC is “obviously going to test the waters” to see if federal courts are receptive to the agency's view that the meaning of sex discrimination isn't limited to what Congress contemplated in 1964, Phillis told Bloomberg BNA March 1.

No federal appeals court ever has ruled Title VII covers sexual orientation discrimination. Rather, most federal circuits have ruled Congress never reached that issue when it enacted Title VII.

But at least two federal appeals courts would allow LGBT workers to pursue Title VII sex discrimination claims based on the theory that sex bias includes discrimination against someone for not conforming to traditional gender stereotypes or norms.

Meanwhile, advocates for increasing legal protections for LGBT people applauded the EEOC's lawsuits.

The Human Rights Campaign is “extremely pleased” the agency has followed up on its federal sector decisions finding Title VII protection against sexual orientation discrimination with the private sector lawsuits, said Sarah Warbelow, the HRC's legal director in Washington.

The EEOC lawsuits are a “natural extension” of the agency's work over the past few years in advancing the Title VII arguments for LGBT protection, Warbelow told Bloomberg BNA March 1.

“We're looking forward to the federal courts having the opportunity to hear from the EEOC” and evaluate the agency's position, Warbelow said.

The EEOC's lawsuits are welcome news for LGBT rights advocates, said Greg Nevins, a lawyer with Lambda Legal in Atlanta.

By filing the private sector lawsuits, the EEOC is sending a message it's serious about enforcement, Nevins told Bloomberg BNA March 1. That's a “very empowering” message for LGBT individuals and educates both workers and employers that the law is advancing, Nevins said.

Although 22 states ban employment discrimination based on sexual orientation, only one state has passed such a measure since 2009, Nevins said. Most states that ban sexual orientation discrimination have added language that bars bias based on gender identity too, he said.

Movement in the Courts

But with legislative progress stalled in Republican-dominated statehouses, advocates are looking to the courts to protect against LGBT discrimination, Nevins said. A “congressional solution” that amends Title VII to prohibit sexual orientation discrimination would be “a great thing,” but, in the meantime, advocates are pushing the courts to recognize Title VII already bans such discrimination as a form of sex bias, Nevins said.

Five federal appeals courts have flatly ruled Title VII doesn't cover sexual orientation, the Ninth Circuit has barred such coverage with a possible exception, the First Circuit rejected sexual orientation coverage because of a party's inadequate argument, and three circuits haven't directly decided the issue, Nevins said.

Meanwhile, some federal district courts have ruled sexual orientation discrimination is sex discrimination under Title VII, Nevins said. Advocates for that view are “chipping away” in the courts and hopeful that more courts will recognize Title VII prohibits such discrimination, he said.

Congress's failure to amend Title VII doesn't mean the statute currently doesn't cover sexual orientation discrimination, Nevins said. The meaning of sex discrimination has evolved over the years, he said. The U.S. Supreme Court has recognized in the Title VII context that statutory terms can encompass more than what Congress specifically had in mind on passage, Nevins said.

That advocates began seeking a legislative solution doesn't mean that Title VII can't be interpreted to cover bias based on sexual orientation, he said.

EEOC Alleges Harassment, Retaliation

In its lawsuit against Scott Medical Health Center in Pittsburgh, the EEOC alleged that Dale Baxley, a gay male telemarketing employee, was subjected to a sexually hostile work environment because of his sexual orientation.

Baxley's male supervisor regularly used anti-gay epithets, inquired about Baxley's sexual relations with a male partner whom Baxley ultimately married and made other “highly offensive comments” about Baxley's sexuality and sex life, the EEOC claimed. When Baxley complained, the clinic director said the supervisor was “just doing his job” and didn't take any action to stop the harassment, the EEOC alleged. Baxley quit rather than endure further harassment, according to the EEOC.

In its lawsuit against Pallet Cos., which operates as IFCO Systems in Baltimore, the EEOC said Yolanda Boone, a lesbian forklift operator, was harassed because of her sexual orientation. Her male supervisor commented on Boone's sexual orientation and appearance, including remarks such as “I want to turn you back into a woman” and “you would look good in a dress,” the EEOC alleged. Boone complained to management and called an employee hotline, but she was fired just a few days after making the complaints, the EEOC alleged.

In each lawsuit, the EEOC contends sexual orientation discrimination “necessarily entails” treating an employee less favorably because of his or her sex.

The two employees also were discriminated against because of their failure to conform to gender stereotypes and their romantic associations with same-sex partners, the EEOC alleged.

“With the filing of these two suits, EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation,” Lopez said in the March 1 statement. “While some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so.”

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at