Lauren Kirkwood, The Daily Record Newswire
Winning the right to same-sex marriage has been seen as the defining hurdle of the battle for LGBT equality, but it's far from the only one. With no federal law that explicitly bans companies from discriminating on the basis of sexual orientation, LGBT employees can still face backlash ranging from harassment to termination in the workplace.
The federal Equal Employment Opportunity Commission is taking on the issue of employment discrimination against LGBT workers in the courts, however. On March 1, the agency filed two federal cases - one in Maryland and one in Pennsylvania - challenging discrimination on the basis of sexual orientation as sex-based discrimination for the first time, a decision local employment lawyers said could motivate businesses to eliminate discriminatory practices and encourage private bar attorneys to take on similar cases.
"There's been this gaping hole in federal law that cannot be remedied by this dysfunctional Congress, so I am thrilled and I applaud the EEOC for the initiative," said Kathleen Cahill, a Towson employment law attorney. "If these cases are won, even though it won't be the law of the land, at least it'll be a message to employers."
While the EEOC cases, filed against Pittsburgh-based Scott Medical Health Center and Baltimore-based IFCO Systems, aren't the first to challenge sexual orientation or gender identity discrimination as sex discrimination, they reflect a growing trend of federal agencies and federal judges coming to the conclusion that those two forms of discrimination are analogous, said Jer Welter, deputy director and managing attorney at FreeState Legal, a Baltimore-based LGBT legal advocacy organization.
"These two lawsuits are the first where the EEOC is bringing to bear its enforcement arm and saying, 'This is discrimination, and it is an enforcement priority for us as an agency,'" Welter said. "It raises the profile of this issue and sends a strong signal of the federal government's position. It shows the EEOC putting its money where its mouth is."
Template for lawyers
The lawsuit filed against Scott Medical Health Center, a pain control and weight-loss clinic, alleges a gay male employee's manager repeatedly used anti-gay epithets and made other offensive comments about the employee's sexual orientation. The clinic's director refused to stop the harassment after the employee complained, according to the suit, responding instead that the manager was "just doing his job."
In its suit against IFCO Systems, a pallet supply company, the EEOC alleged that a lesbian forklift operator was fired after she complained that she was being harassed by her supervisor, who told her she would "look good in a dress" and frequently made suggestive comments and gestures to her.
While the cases might exemplify particularly overt sexual orientation discrimination, Cahill said, they could still serve as a template for other employment lawyers looking to tackle the issue.
"The EEOC definitely is the major player to advance a massive reform or advance the reform on a very broad and multifaceted playing field, whereas an individual lawyer can bring one case at a time but doesn't have the same platform the EEOC does," Cahill said. "That's why this is a much bigger deal than trying to plug away case by case in the private practice of law."
In federal sector appellate decision issued in July, the EEOC explained why it considers Title VII of the Civil Rights Act's prohibition of sex discrimination to include prohibition of discrimination based on sexual orientation, observing, for example, that sexual orientation discrimination is "rooted in non-compliance with sex stereotypes and gender norms," and employment decisions based on these stereotypes have long been found to be prohibited sex discrimination. Sexual orientation discrimination also punishes employees because of their marital or other relationships with members of a certain sex, the agency noted.
"Judges are of course not bound by the EEOC's interpretation, but I think as the federal agency that's charged nationwide with the investigation and enforcement of Title VII, the EEOC's understanding that discrimination on the basis of sexual orientation or gender identity is inherently sex discrimination is really going to be entitled to respect and strong consideration by federal judges that are faced by this," Welter said.
More lawsuits, charges
That doesn't mean federal legislation isn't needed to make those protections more explicit, Welter was quick to add. However, a positive outcome for the EEOC in these two cases could lead private bar attorneys to the realization that many courts are inclined to view the argument favorably, he said.
"Members of the private bar who focus on employment discrimination, they may previously have thought, 'Oh, this is an off-the-wall theory; I'm not going to go for it,'" Welter said. "I think this decision by the EEOC really sends a message that the theory is very much 'on-the-wall' and is in fact how the federal government is interpreting Title VII. I think that it may well lead to more suits on these grounds where employers are discriminating against LGBT employees."
The number of lawsuits alleging sexual orientation discrimination by employers has already started to rise over the past few years, said Julie Wilensky, director of the California office of the Civil Rights Education and Enforcement Center, a nonprofit that advocates for people facing discrimination for sexual orientation and gender identity, among other factors.
In fiscal year 2015, which ended Sept. 30, the EEOC received 1,412 charges that included allegations of sex discrimination related to sexual orientation, gender identity or transgender status - an increase of approximately 28 percent over the 1,000 LGBT charges filed in fiscal 2014, according to the agency.
"I think that the courts have recognized that stereotyping based on sex-based considerations has been discrimination for at least the last 15 years or so, but given that these are the first lawsuits brought by the EEOC involving discrimination in these contexts, I think that will encourage other advocates to bring these cases," said Wilensky, who litigates civil rights and employment cases on behalf of LGBT individuals.
Impact on businesses
Despite the increase, there are nevertheless challenges to bringing these lawsuits, Cahill said, such as the originalist argument that extending protection from sex discrimination to include sexual orientation discrimination strays outside the bounds of the law's original meaning.
However, "that doesn't mean the reasoning isn't absolutely sound," she said. "Obviously, this is an area where there is there's a lot of pushback and reaction from conservatives."
On the other hand, Cahill added, some businesses have had protections for LGBT employees ingrained in their policies for decades.
"Businesses that want to hire the best and retain the best and have productivity and harmony have recognized for a long time that arbitrary and irrational and discriminatory practices, maybe they didn't believe they're wrong, but they've learned they're not good for business," she said.
The EEOC-filed lawsuits should heighten the urgency for businesses that don't already recognize that, she said.
"The principle objective of these laws and cases and initiatives is to prevent and deter, and then remedy where it's necessary," she said. "[The EEOC] issues guidance, they do trainings, they speak on policy, they do educational programs for lawyers and employers, they have all those sorts of avenues or approaches to getting the message out about this, about why it's good for everyone, including for businesses, to not exclude willing workers based on illegal and arbitrary bias."
As the EEOC pushes the issue of sexual orientation discrimination to the forefront, an increasing number of lawyers who represent company management will also begin to cover these issues in their training sessions and handbooks, Cahill added.
"That's how it spreads on the ground," she said. "That's how it impacts workers now."
Published: Tue, Apr 05, 2016
