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Sexual Orientation Discrimination is Prohibited by Title VII, Pennsylvania Federal Court Rules

The prohibition against sex discrimination under Title VII of the Civil Rights Act extends to sexual orientation, Judge Cathy Bissoon of the Western District of Pennsylvania has ruled. EEOC v. Scott Medical Health Ctr., No. 16-225 (W.D. Pa. Nov. 4, 2016).

Complaint

The U.S. Equal Employment Opportunity Commission filed a complaint alleging that a manager from Scott Medical Center routinely made unwelcome and offensive comments to an employee based on his sexual orientation. The EEOC alleged the manager also would comment about the employee’s relationship with his partner, including questioning how the two men had sexual relations.

Motion Denied

Scott Medical Center filed a Motion to Dismiss based on (1) perceived procedural deficiencies in the suit and (2) failure to state a cause of action on the argument that Title VII does not prohibit discrimination on the basis of sexual orientation. Judge Bissoon squarely denied the Motion to Dismiss on both grounds.

The Court found the EEOC had satisfied is procedural prerequisites for filing suit by receiving a charge that alleged workplace discrimination, providing notice of the charge to Scott Medical Center, conducting an investigation, issuing a reasonable cause determination, and attempting to engage in conciliation efforts. The fact that the employee’s harassment claims were discovered during the course of an investigation into charges filed by other employees did not alter these prerequisites, the Court said.

The Court agreed the employee and the EEOC were able to make out the following theories for how the harassment was based on the employee’s sex:

(1) [the employee] was targeted because he is male, for had he been female instead of a male, he would not have been subject to discrimination for his intimate relationships with men; (2) [the employee] was targeted and harassed because of his intimate association with someone of the same sex, which necessarily takes [the employee’s] sex into account; and (3) [the employee] was targeted because he did not conform to his harasser’s concepts of what a man should be or do.

Relying on the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1998), the Court stated, “[T]here is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality . . . [and the Court found that] discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two.”

The Court rejected the argument that the U.S. Court of Appeals for the Third Circuit (which has jurisdiction over Pennsylvania) had ruled on the issues in Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001), and Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009). The Court noted the Third Circuit’s decisions were not dispositive — both because they were decided on different arguments and analytical frameworks, and because much of the case law precedent relied on in those cases either predated Price Waterhouse or merely accepted as a given that Title VII did not cover sexual orientation discrimination.

Instead, the Court noted the U.S. Supreme Court’s recent opinion legalizing same-sex marriage (Obergefell v. Hodges, 135 S.Ct. 2584 (2015)) demonstrated the illegality of discrimination on the basis of sexual orientation. The Pennsylvania court stated, “[T]hat someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms of conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.”

Implications

Title VII applies to all private sector and state and local government employers with at least 15 employees. Employers must be mindful that, in addition to the federal employment laws, there are 22 states’ laws that prohibit discrimination based on sexual orientation and 19 states that prohibit discrimination based on gender identity. Moreover, the EEOC has targeted jurisdictions in which LGBT (lesbian, gay, bisexual, and transgender) rights are not covered under state or local law.

Despite the recent presidential election, there is no indication the EEOC will stop prioritizing LGBT cases, and the Commission has included LGBT rights as part of its 2017-2021 Strategic Enforcement Plan.

In addition, federal contractors and federally assisted construction contractors who entered into or modified contracts on or after April 9, 2015, are subject to Executive Order 13672. The EO prohibits employment discrimination based on gender identity or sexual orientation. (See our article, DOL Releases Regulations Extending Protections to Lesbian, Gay, Bisexual, and Transgender Employees, Applicants.)

Employers should monitor federal and state laws and court decisions and ensure their policies and handbooks include sexual orientation and gender identity as protected groups and their harassment prevention training covers LGBT forms of harassment and discrimination.

Jackson Lewis P.C. © 2020

TRENDING LEGAL ANALYSIS


About this Author

Douglas G. Smith, Pittsburgh, Jackson Lewis, Title VII Litigation Lawyer, Age Discrimination Attorney
Office Managing Principal

Douglas G. Smith is the Office Managing Principal of the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. He is also the national Pro Bono Coordinator and, for the last two years, has served as national chair of the firm’s Partnership Admission Committee.

In addition to counseling employers in matters such as union organizational campaigns, Mr. Smith focuses his practice in the area of employment law litigation before agencies and courts on the state and federal level. Mr. Smith has successfully litigated matters in state and federal court under Title VII...

412-338-5151
Marla Presley, Employment Labor Litigation Attorney, Jackson Lewis Law Firm
Principal and Office Litigation Manager

Marla N. Presley is a Shareholder in the Pittsburgh, Pennsylvania office Jackson Lewis P.C. Prior to joining Jackson Lewis, Ms. Presley was a litigation attorney at both a regional and national law firm, concentrating in the field of labor and employment litigation, including individual and collective action discrimination and wage and hour claims.

Ms. Presley’s practice is focused exclusive on the representation of employers in employment related litigation before administrative agencies and courts on both the state and federal levels. Ms. Presley dedicates a significant portion of her practice to proactively counseling employers with respect to litigation prevention and overall compliance with state, federal, and administrative laws and regulations. These include reviewing and revising employee manuals and policies, reviewing and counseling management regarding termination decisions (including large scale layoffs), and performing complex human resource audits. In addition, she is experienced in drafting various employment agreements including non-competes and severance agreements.

(412) 232-0404
Paul Patten, Employment, Management, Attorney, Jackson Lewis Law Firm
Principal

Paul Patten is a Principal in the Chicago, Illinois, office of Jackson Lewis P.C. He represents management in employment cases in federal and state courts and before administrative agencies.

Mr. Patten’s practice focuses primarily on employment litigation and counseling. He represents employers in federal and state individual and class-based lawsuits covering a wide range of statutes and subjects, including federal and state anti-discrimination and wage and hour laws.

312-803-2570
Michelle E. Phillips, Jackson Lewis Law Firm, Labor Employment Attorney
Principal

Michelle E. Phillips is a Principal in the White Plains, New York, office of Jackson Lewis P.C. She handles various types of employment litigation, with an emphasis on sexual harassment matters.

Ms. Phillips also counsels clients on a variety of labor and employment matters concerning federal and state employment laws. She frequently conducts and advises clients on internal investigations and leads employment discrimination and sexual harassment seminars and in-house diversity training programs for clients.

914-328-0404
Associate

Mariah H. McGrogan is an Associate in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. Her practice focuses on representing employers in labor and employment-related litigation, in federal and state courts in both Pennsylvania and West Virginia. 

Ms. McGrogan also has experience counseling educational institutions on issues related to Title IX, the Americans with Disabilities Act, the Clery Act and the Campus SAVE Act.

Before joining Jackson Lewis, Ms. McGrogan was an associate...

412-338-5187