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These lawsuits are the first to allege that sexual orientation discrimination violates Title VII
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Employers that want to stay off the Equal Employment Opportunity Commission’s (EEOC’s) radar should pay attention to its historic March 1 filing of two sex discrimination cases based on sexual orientation.
The lawsuits—the first EEOC claims alleging that private companies discriminated against individuals based on their sexual orientation in violation of Title VII of the Civil Rights Act of 1964—show that the commission intends to stamp out this type of discrimination. Proactive employers will tweak their equal employment opportunity (EEO) policies as needed and train their employees accordingly, management attorneys say.
In its lawsuit against Scott Medical Health Center, a provider of pain management and weight loss services in Pittsburgh, the EEOC alleged that the health center discriminated against a gay male employee because of his sexual orientation. Dale Baxley’s manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life, the EEOC said. 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 suit. After two to three more weeks of continued harassment, Baxley resigned rather than endure further harassment.
Scott Medical Health Center denied the harassment allegations. In a press release, it said, “Scott Medical Center 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.”
In the commission’s lawsuit against Pallet Companies, doing business as IFCO Systems, a worldwide provider of reusable plastic containers and subsidiary of Brambles (headquartered in Sydney), the EEOC alleged that the company discriminated against a woman by terminating her for complaining about harassment because of her sexual orientation. Yolanda Boone’s supervisor harassed her by repeatedly making comments, sometimes accompanied by sexually suggestive gestures, to Boone about her sexual orientation, the EEOC alleged. His comments included, “I want to turn you back into a woman” and “You would look good in a dress,” according to the lawsuit. Once, the supervisor blew a kiss at her and circled his tongue at her in a suggestive matter, the commission maintained.
Jay Frye, regional general counsel in the Americas for Brambles in Alpharetta, Ga., disagreed with the allegations made in the lawsuit. “Pallet Companies has a long-standing commitment to providing a work environment in which everyone is treated fairly and with respect, without regard to their sexual orientation, sexual identity, gender, race, nationality, age, disability, religion, marital status or political opinion,” he remarked. Saying that the company values diversity and has no tolerance for any discrimination, harassment or retaliation in the workplace, he said the company “will vigorously defend against this litigation.”
While Title VII does not mention discrimination based on sexual orientation, the EEOC has explained that it thinks Title VII’s prohibition of sex discrimination includes discrimination due to an individual’s sexual orientation because:
All businesses should include an individual’s sexual orientation and an individual’s gender identity and expression in their EEO lists of what is considered prohibited discrimination, according to Laura O’Donnell, an attorney with Haynes and Boone in San Antonio.
Most Fortune 500 companies include sexual orientation in their EEO policies, noted Mark Phillis, an attorney with Littler in Pittsburgh. Many also prohibit discrimination based on gender identity or expression, he noted. In light of the EEOC’s lawsuits, employers “act at their peril” to not include sexual orientation in their EEO policies, he said.
While there has been federal legislation proposed (the Employment Non-Discrimination Act) to add “sexual orientation” as a prohibited discriminatory basis, the fact that the legislation hasn’t been enacted does not trump the plain language of Title VII which could be read to prohibit sexual orientation discrimination, Phillis said.
In addition, “Many states and even counties prohibit discrimination on the basis of sexual orientation,” said Jill Vorobiev, an attorney with Sheppard Mullin in Chicago. She predicted that “It is likely that more and more courts could find that Title VII’s prohibition against sex discrimination encompasses sexual orientation discrimination.”
Consequently, employers have to “train employees to be respectful” toward people who are lesbian, gay, bisexual or transgender, said Arlene Switzer Steinfield, an attorney with Dykema in Dallas. This isn’t a big deal for most employees, but is “anathema to those who are anti-gay,” she said. “They may claim it is an encroachment on their belief system.”
Steinfield said these employees have to be taught to “check their personal prejudices at the door and don’t act on them in the workplace.” She said employers should clarify that they “are not asking employees to do anything that interferes with their religious practices,” but instead that employees must “treat all with respect without regard to homosexuality.”
Standing next to or working on an assembly line with someone who is gay or lesbian does not violate a religious practice, she said.
If an employee wants to proselytize and try to convert a gay or lesbian employee to be straight, that type of behavior “does not belong in the workplace,” said Steinfield. “This is nonproductive time. They need to focus on their work.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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