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Western District of Pennsylvania Bucks Recent Trend and Permits Sexual Orientation Discrimination Claim to Proceed

On November 4, 2016, the Western District of Pennsylvania held that the “because of sex” provision in Title VII of the Civil Rights Act prohibits discrimination on the basis of sexual orientation. In doing so, the court broke from the recent trend of federal courts that have felt compelled by prior precedent to dismiss sexual orientation discrimination claims.

In EEOC v. Scott Medical Health Center, P.C., the plaintiff (a gay male) alleged that he was subjected to repeated and unwelcome offensive comments regarding his sexual orientation and his relationship with a male partner, creating a hostile and offensive work environment that resulted in the plaintiff’s constructive discharge.  Relying on the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which held that discrimination on the basis of sex stereotyping is prohibited, the court concluded 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.”

This conclusion contradicts recent decisions in the Seventh Circuit and Southern District of New York, both of which have held that gender discrimination can be “disentangled” from sexual orientation discrimination, and have dismissed claims premised solely on sexual orientation discrimination allegations.  The Western District of Pennsylvania’s departure from prior precedent could signal the beginning of a split in authority that could eventually end up with this issue being considered by the Supreme Court.

This area of law is ripe for further litigation. In the short term, employers should continue to monitor the changing legal landscape and be mindful that other courts could also conclude the discrimination based on sexual orientation is prohibited under Title VII, as well as anti-discrimination provisions in other laws and regulations, such as Executive Order 13672 expressly barring federal contractors from discriminating on the basis of sexual orientation or gender identity.  Regardless of the federal court pronouncements, employers should be aware that various federal agencies are taking the same expansive view of the definition of discrimination on the basis of “sex.”  In the Final Rule implementing Section 1557 of the Affordable Care Act, for example, the Department of Health and Human Services expressly defines discrimination on the basis of sex to include sex stereotyping (and gender identity). Numerous states also expressly prohibit sexual orientation discrimination under their employment law.  Thus, employers seeking to comply with applicable state law and seeking to avoid scrutiny from the EEOC and other federal agencies should train their workforce to eliminate discriminatory or harassing behavior premised on sexual orientation, and review their policies to ensure that such discrimination is prohibited.

©2019 Epstein Becker & Green, P.C. All rights reserved.

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About this Author

Frank Morris, Health Care Attorney, Epstein Becker Law Firm
Member of the Firm

FRANK C. MORRIS, JR., is a Member of the Firm in the Litigation and Employee Benefits practices, heads the Labor and Employment practice in the Washington, DC, office, and co-chairs the firm's ADA and Public Accommodations Group.

Mr. Morris' experience includes:

  • Advising clients on and litigating employment, labor, disabilities, non-compete, confidentiality, benefits, information access and privacy, wage and hour, and general litigation matters in state and federal courts and administrative agencies...

202-861-1880
Nathaniel M. Glasser, Epstein Becker, Labor, Employment Attorney, Publishing
Member

NATHANIEL M. GLASSER is a Member of the Firm in the Labor and Employment practice, in the Washington, DC, office of Epstein Becker Green. His practice focuses on the representation of leading companies and firms, including publishing and media companies, financial services institutions, and law firms, in all areas of labor and employment relations.

Mr. Glasser’s experience includes:

  • Defending clients in employment litigation, from single-plaintiff to class action disputes, brought in federal court, state court, and arbitration tribunals involving claims of unlawful discrimination, harassment, retaliation, breach of contract, defamation, alleged violation of the FLSA and state wage and hour laws, and whistleblowing

  • Representing clients facing charges at the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor, the District of Columbia Commission on Human Rights, the New York State Division of Human Rights, the New York City Commission on Human Rights, and other administrative agencies at the federal, state, and local levels

202-861-1863
Jonathan K. Hoerner, Epstein Becker law firm Life Sciences Attorney Washington D.C.,
Associate

JONATHAN K. HOERNER is an Associate in the Health Care and Life Sciences practice, in the Washington, DC, office of Epstein Becker Green.

Mr. Hoerner:

  • Defends health care and life sciences companies in litigation as well as in connection with federal and state government investigations, qui tam actions, and internal investigations related to health care fraud
  • Advises clients regarding fraud and abuse issues arising under anti-kickback laws, the Stark Law, and the False Claims Act
  • Assists clients in evaluating, developing,...
202-861-1826