Widening the net of discrimination

Dan Heilman, The Daily Record Newswire

The Equal Employment Opportunity Commission has fired a strong shot across the bow regarding the rights of gay, lesbian and transgender workers - one that employers would do well to pay attention to, say employment attorneys.

Last month the EEOC commenced a pair of lawsuits charging employers with violating Title VII of the Civil Rights Act of 1964.

That section of the act prohibits employers from discriminating against employees on the basis of sex, but does not include specific protections for sexual orientation. While many states, including Minnesota, have protections in place for LGBT citizens, others don't. North Dakota and South Dakota are two states in the latter category.

Many federal courts have declined to extend Title VII to prohibit workplace discrimination based on sexual orientation or gender identity. Some lawyers see the dual lawsuits as a way of forcing the issue.

"These lawsuits are significant because for the first time the EEOC is expanding 'sex' under Title VII to include sexual orientation as a protected characteristic in employment law," said Ashleigh Leitch, a labor and employment attorney at Best & Flanagan. "This is a creative approach to expand LBG protection nationwide because only 22 states currently have anti-discrimination laws covering gay, lesbian, and bisexual workers."

Broad interpretation

Fargo attorney Lisa Edison-Smith, who practices in both North Dakota and Minnesota, mostly represents employers. She agrees that the EEOC's goal seems to be to expand Title VII to take into account sexual orientation and gender identity.

"They're saying that discrimination based on gender stereotypes is prohibited by Title VII," said Edison-Smith, who practices labor and employment law for the Vogel law firm in Fargo. "It's taking a broad interpretation of what means to include necessarily sexual orientation and gender identity."

In a suit against Scott Medical Health Center, the EEOC charged that a gay employee was subjected to harassment because of his sexual orientation. According to the agency, the employee's manager repeatedly referred to the employee using numerous anti-gay epithets and comments about his sexuality and sex life. The EEOC contends that after the employee complained to a supervisor, the employer refused to take any action to stop the harassment. The other lawsuit, against IFCO Systems, the EEOC contended that a lesbian employee was harassed by her supervisor because of her sexual orientation.

The hinge in the two cases is similar: The failure by an employer to address employees' complaints of a hostile work environment or retaliation against an employee who complained about such harassment, behavior that the EEOC says constitutes illegal sex discrimination under Title VII.

Should that give employers pause, even in states that don't have protections in place for LGBT citizens? Absolutely, according to Edison-Smith.

"This is an evolving area for employers," she said. "But employers in states like North Dakota, where there's no express protection based on sexual orientation and gender identity, I've encouraged them for a number of years to be cautious about this."

Edison-Smith pointed to the landmark case of Price Waterhouse v. Hopkins, in which an accountant was denied partnership in her firm because she exhibited masculine traits. That case marked the point where the U.S. Supreme Court expanded its definition of discrimination to take into account gender stereotyping.

"This is an area that is an enforcement emphasis for the EEOC," she said. "Even though our state statute doesn't prohibit discrimination based on sexual orientation, it does prohibit discrimination based on lawful activity. Same-sex marriage is lawful. That gives a creative plaintiff's lawyer the opportunity to say this is a violation of the North Dakota Human Rights Act."

In lieu of legislation

Federal legislation addressing explicitly including sexual orientation as a protected category under Title VII has been floated in Congress without much success. Nevertheless, all employers should pay attention to the EEOC's lawsuit because it could lead to a forum in federal court for sexual orientation discrimination lawsuits, according to Best & Flanagan's Leitch.

"Constructs of proof and remedies vary slightly between federal and state law, so employment lawyers should plead or seek removal strategically," she said. "Employers in states without LGB protections should follow these lawsuits especially closely because, if the EEOC is successful, employers who discriminate will risk being sued in federal court."

Thanks to legislation in states such as North Carolina, sexual orientation is a hot-button issue. Whether or not federal legislation in the area comes to pass, look for the EEOC lawsuits to be only the first volley in a push by the EEOC to expand Title VII.

"The EEOC is impatient because Congress hasn't passed ENDA (the long-pending Employment Non-Discrimination Act)," said Edison-Smith. "The EEOC thinks the time is right, with the mood of the courts and the public, to test the waters on Title VII being a means of enforcing prohibition."

Published: Fri, Apr 22, 2016

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