Sex Orientation Protected Civil Right, Court Says

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Kevin McGowan

Nov. 7 — Workplace bias based on sexual orientation is prohibited by federal civil rights law, a federal judge in Pittsburgh ruled ( EEOC v. Scott Med. Health Ctr., P.C. , 2016 BL 370377, W.D. Pa., No. 16-225, 11/4/16 ).

The decision by Judge Cathy Bissoon hands the Equal Employment Opportunity Commission and civil rights advocates a big legal victory. But the legal battle over how to interpret Title VII of the 1964 Rights Act is just beginning.

The case is “an important part of an overall trend” of courts recognizing that lesbian, gay, bisexual and transgender persons are entitled to the “full protection” of laws prohibiting sex discrimination, Sarah Warbelow told Bloomberg BNA Nov. 7. Warbelow is legal director of the Human Rights Campaign, an LGBT rights advocacy group in Washington.

Bissoon said the EEOC may pursue a claim that Scott Medical Health Center violated Title VII by allegedly allowing a supervisor to harass a gay employee because of his sexual orientation so badly the employee felt forced to quit.

Scott moved to dismiss the case on grounds that Title VII doesn’t cover sexual orientation. But the court said “there’s no meaningful distinction” between bias based on sexual orientation and discrimination “because of sex.” It endorsed the EEOC’s view that Title VII’s ban on sex discrimination necessarily includes bias based on an individual’s sexual orientation.

Federal Circuits Poised to Consider

The EEOC and LGBT rights advocates now will cite the decision, among others, to three federal appeals courts poised to take up the Title VII issue over the next few months.

No federal appeals court has yet ruled that Title VII reaches sexual orientation bias. A number previously have ruled Title VII’s sex discrimination ban doesn’t cover sexual orientation.

A Nov. 30 oral argument before the full U.S. Court of Appeals for the Seventh Circuit is the first upcoming case in which Title VII’s coverage of sexual orientation bias will be debated.

It’s “incredibly promising” the full Seventh Circuit agreed to re-examine its prior cases and the HRC is “hopeful” about the how the issue is evolving in the courts, Warbelow said.

Also pending are a Dec. 15 oral argument before the Eleventh Circuit and a Jan. 5 argument in the Second Circuit.

The district court’s ruling came in one of the first two lawsuits filed by the EEOC against private employers in which the agency alleged Title VII covers sexual orientation bias. The EEOC in June settled the other lawsuit against a Maryland company for about $200,000.

EEOC Abusing Authority?

The issue is “another example of the EEOC pushing the legal envelope,” said Gerald Maatman, an attorney with Seyfarth Shaw in Chicago who represents employers.

He predicted a “mixed bag of rulings” once federal appeals courts start deciding the Title VII issue.

The EEOC probably is “following a sound legal strategy” designed to create a circuit split and get the issue before the U.S. Supreme Court, Maatman told Bloomberg BNA Nov. 7.

But it’s questionable if the EEOC is “spending taxpayers’ money wisely” by litigating this novel Title VII question instead of addressing “bread and butter” bias charges pending before the agency, Maatman said.

Maatman said most of his employer clients already ban sexual orientation discrimination, either because they are subject to state or local laws banning such bias or it’s a good business practice. But employers question if the EEOC is abusing its authority by trying to amend Title VII through litigation, he said.

“What we’re talking about here is creating new law,” Maatman said.

If one favors “outcome-driven jurisprudence,” then Bissoon’s decision makes good sense, said J. Randall Coffey of Fisher & Phillips in Kansas City, Mo., who represents employers. The EEOC and the district court are “engaged in creative exercises” to reach a desired result, Coffey told Bloomberg BNA Nov. 7.

There’s no doubt that “sex” in a societal sense now includes greater recognition of sexual orientation and other manifestations of sexuality, Coffey said.

But it’s “an incredibly poor way” to interpret Title VII when even supporters of LGBT protections admit Congress in enacting the law didn’t intend “sex” to sweep so broadly, he said.

Expansive Meaning of ‘Sex.’

The decision shows the EEOC and LGBT rights advocates now are getting judges to pay attention to why Title VII should be interpreted to ban sexual orientation discrimination, said Greg Nevins, a senior attorney with Lambda Legal in Atlanta.

Once the courts consider the arguments on the merits, rather than just cite past precedents barring Title VII coverage, “we win almost all the time,” Nevins told Bloomberg BNA Nov. 7.

Nevins submitted an amicus brief for Lambda Legal supporting the EEOC before the district court.

The Supreme Court always has viewed Title VII’s ban on “sex” discrimination expansively, said Gillian Thomas, a senior staff attorney with the American Civil Liberties Union’s Women’s Law Project in New York, who also filed a brief supporting the EEOC.

As the district court noted, the justices have interpreted “sex” to reach discrimination against men as well as women, harassment based on sex and bias based on failure to conform with “sex stereotypes,” Thomas told Bloomberg BNA Nov. 7.

The court properly ruled that interpreting Title VII’s sex bias ban to prohibit sexual orientation discrimination follows from these Supreme Court precedents, said Thomas, who also has written a book on the evolution of “sex” under the civil rights law.

Bissoon said in her opinion said “there is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.”

Precedent Not Disqualifying

A Third Circuit precedent holding that Title VII doesn’t cover sexual orientation bias isn’t “dispositive,” the district court said.

The appeals court in that case wasn’t presented with the arguments that the EEOC advances now and that employee didn’t raise a sex stereotyping contention, the court said.

There have been “significant intervening legal developments” that “call into question” the Third Circuit’s precedent, the court said. Among them are Third Circuit decisions that “question the relevance of Congressional inaction” when interpreting federal statutes.

The Supreme Court’s 2015 decision legalizing same-sex marriage also “demonstrates a growing recognition of the illegality of discrimination” based on sexual orientation, the court said.

An attorney representing the medical center declined to comment on the decision.

EEOC attorneys in Pittsburgh and Baltimore represented the agency. Margolis Edelstein represented Scott Medical Health Center.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.