Pennsylvania Ruling Supports Federal Position Against Sexual-Orientation Discrimination

By Dana Wilkie Nov 10, 2016
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​A federal judge's ruling that Pennsylvanians are protected from sexual-orientation discrimination strengthens the Equal Employment Opportunity Commission's (EEOC's) argument that federal civil rights laws prohibit such discrimination—in all states.

In the case of U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center, a federal judge in Pittsburgh sided with the EEOC position that Title VII of the Civil Rights Act of 1964 protects against discrimination based on sexual orientation.

"There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality," Judge Cathy Bissoon wrote in her Nov. 4 opinion.

"This is an important win for LGBTQ equality," said Sarah Warbelow, legal director at the Human Rights Commission, which advocates for LGBTQ rights. "Judge Bissoon's decision affirms that discrimination against an individual based on their sexual orientation is fundamentally a form of discrimination based on sex, which is prohibited by federal law. We congratulate the EEOC and the plaintiff on this victory," Warbelow said in a press release.

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The EEOC alleged that Scott Medical Health Center, which provides pain management and weight loss services in Pittsburgh, discriminated against Dale Baxley, a gay male employee, because of his sexual orientation. Baxley claimed his manager repeatedly referred to him using anti-gay epithets and made offensive comments about his sexuality. When Baxley complained to the clinic director, the director responded that the manager was "just doing his job" and took no action to stop the harassment, according to the EEOC suit. After two to three more weeks of harassment, Baxley resigned.

Scott Medical Health Center denied the harassment allegations. In a press release, it said it "has a written policy against harassment, which is strictly enforced. We are proud of our long history of equal opportunity for all, regardless of race, sex, national origin, disability, sexual orientation, age or religion. We will vigorously defend ourselves against the false claims made by the EEOC."

EEOC v. Scott Medical Health Center is one of the first cases in which the EEOC argued in court that sexual orientation discrimination is in the same category as discrimination based on gender.

"Addressing emerging and developing issues, especially coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, is one of six national priorities identified" by the EEOC, the agency said in a press release on the ruling.

The Pennsylvania judge's decision continues an important trend in the development of case law.

Title VII is the federal law that prohibits employers from discriminating against employees based on sex, race, color, national origin or religion. In 2015, the EEOC determined in the case of Baldwin v. Foxx that sexual orientation discrimination is sex discrimination, thus workers are protected under Title VII from employment discrimination based on sexual orientation. 

In the Baldwin case, a Department of Transportation (DOT) employee filed a complaint with his employer alleging that he had not received a promotion because he is gay. The DOT responded that it shouldn't have to take the case through the EEOC because his claim didn't fall under Title VII.

Although the EEOC sided with Baldwin, Title VII still does not specify that "sexual orientation" is a prohibited form of discrimination.

"The EEOC is actively pursuing cases to expand the scope of Title VII's sex discrimination protections to include sexual orientation," said Nancy B. Hammer, senior government affairs policy counsel for the Society for Human Resource Management. "In fact, the commission's recently released Strategic Enforcement Plan identifies this as an emerging issue of focus for the commission over the next five years. It's definitely an issue for employers to watch." 

Several states have passed laws prohibiting discrimination on the basis of sexual orientation. The EEOC's position applies to protections available under Title VII and, for now, in states where there are no laws prohibiting discrimination on the basis of sexual orientation (such as in Pennsylvania), "employers should be mindful of the federal courts' decisions," said Jill Vorobiev, an attorney with Sheppard Mullin in Chicago.

"While the federal district court judge's decision in Pennsylvania will likely guide decisions of employers in Pennsylvania at this time, this decision presumably will be appealed to the federal court of appeals, which could reach a different outcome," she said.

Arlene Switzer Steinfield, an attorney with Dykema in Dallas, noted that the Pennsylvania judge's ruling is "not just a state ruling."

"It is from a federal district court," she said. "It is clear that plaintiffs seeking to expand the interpretation of Title VII to include sexual orientation discrimination will cite this case.  While it is not binding on other federal district courts, another court seeking to reach the same result will argue that the decision in this case was well-reasoned."

Vorobiev noted that the Seventh Circuit Court of Appeals in the case of Hively v. Ivy Tech Community College recently ruled that Title VII does not apply to sexual orientation discrimination. She predicted that the U.S. Supreme Court will eventually address the issue.

"In the meantime," she said, "employers should be mindful of both state law protections and the decisions of federal courts within their jurisdiction." 

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