Lucie Rivière and Edgar M. Rivera, Esq.
In January 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”), the federal agency tasked to enforce the Title VII of the Civil Rights Act of 1964 (“Title VII”), adopted its Strategic Enforcement Plan (“SEP”) for the 2013-2016 time period, in which it identified the importance of addressing emerging and developing issues as one of its six national priorities. Specifically, EEOC wants to expend the protection of lesbian, gay, bisexual and transgender individual under Title VII.
On March 1, 2016, the EEOC filed two lawsuits asserting sexual orientation discrimination claims under Title VII. In U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center, P.C., Case No. 2:16-cv-00225-CB (W.D. Pa. Mar. 1, 2016), the EEOC alleges that a gay male employee was subjected to harassment because of his sexual orientation. In U.S. Equal Employment Opportunity Commission v. Pallet Companies d/b/a IFCO Systems, NA, Inc., Case No. 1:16-cv-00595-RDB (D. Md. Mar. 1, 2016), the EEOC alleges that a supervisor harassed a lesbian employee because of her sexual orientation. In both cases, the EEOC argues that the defendants conduct occurred in violation of Title VII.
Title VII does not expressly reference “sexual orientation” as a prohibited form of discrimination; however, the EEOC recently took the position that Title VII’s prohibition on sex discrimination encompasses discrimination based on sexual orientation and/or gender identitye. In its July 15, 2015 appeal brief in Baldwin v. Dep’t of Transp., (appeal No. 0120133080), the EEOC argues that Title VII’s prohibition of sex discrimination includes sexual orientation for the following two reasons: (1) sexual orientation discrimination necessarily involves treating workers less favorably due to their sex since sexual orientation cannot be understood without reference to sex; and (2) sexual orientation discrimination involves sex stereotypes and gender norms. Thus, the EEOC believes employment decisions based on such sex stereotypes and norms are forms of prohibited sex discrimination under Title VII.
The law is not yet settled as to whether Title VII prohibits discrimination based on sexual orientation. On March 9, 2016, in Christiansen v. Omnicom Group, 2016 WL 951581, (S.D.N.Y. March 9, 2016), the District Court for the Southern District of New York declined to extend Title VII’s protections to sexual orientation discrimination, dismissing a gay plaintiff’s claim for gender discrimination against his employer. The District Court granted defendant’s motion to dismiss, citing Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), in which the Second Circuit held that Title VII “does not proscribe discrimination because of sexual orientation.”
At the same time, legal protections for employees based on gender identity and expression continue to expand. In December 2014, an Executive Order from the U.S. Department of Labor (“DOL”) went into effect prohibiting federal contractors from discriminating on the basis of sexual orientation and gender identity. Also, there are currently 22 states (Washington, Oregon, California, Nevada, Utah, Colorado, New Mexico, Minnesota, Iowa, Illinois, Wisconsin, Maine, New Hampshire, Vermont, Massachusetts, Connecticut, New York, Rhode Island, New Jersey, Delaware, Maryland, and Hawaii), as well as the District of Columbia, that have passed laws prohibiting discrimination in employment based on a person’s sexual orientation and/or gender identity. Strengthening protections for LGBT people under Title VII will help LGBT workers receive equal treatment, notably in jurisdictions lacking local anti-sexual orientation discrimination statutes.
In New York, New York City and New Jersey, employment discrimination based on sexual orientation, sexual preference, or gender identity is illegal. If you have felt discriminated against for your gender or sexual orientation, please contact The Harman Firm, LLP.