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Dec 04, 2017

Sexual Orientation Discrimination

By: Allison Mann

As of now, the federal stance on sexual orientation discrimination is less than clear. The Department of Justice has taken a firm stance that federal law does not protect from discrimination on the basis of sexual orientation. However, the EEOC stands firm that Title VII’s prohibition against discrimination on the basis of sex as applying equally to discrimination on the basis of sexual orientation. Federal district courts have also become more willing to recognize protection from sexual orientation discrimination. This issue should already be on the radar of human resource professionals. This issue is one that is in constant development, and a failure to take notice could potentially have far-reaching negative consequences.

E.E.O.C. v. Scott Med. Health Ctr., P.C.

In November, the EEOC scored a major win in the U.S. District Court for the Western District of Pennsylvania, where it was awarded one of the first damages awards against an employer for sexual orientation discrimination.

Dale Massaro (nee Baxley) worked as a telemarketer at Scott Medical Health Center. During Mr. Massaro’s employment, his direct supervisor frequently made derogative statements towards him related to his sexual orientation. Mr. Massaro reported this behavior to the CEO of the company, however, no action was taken. The CEO reportedly saying that Mr. Massaro’s supervisor was just doing his job. Mr. Massaro suffered from depression and other emotional distress as a result of his supervisor’s behavior. He eventually resigned from his position at the company, and filed a complaint with the EEOC. The EEOC subsequently brought suit.

The Law:

Title VII provides that “it shall be an unlawful employment practice . . . to discriminate against any individual . . . because of . . . sex.” As discussed above, there is disagreement as to whether the provisions of Title VII extend to sexual orientation.

Most courts will recognize three basic theories of proving discrimination on the basis of sex: (1) the plaintiff is being treated differently because of their gender; (2) the plaintiff is being treated differently because of the harasser’s sexual desire for the plaintiff; or (3) the plaintiff is being treated differently because they do not conform to a gender stereotype.

Some courts have expressly distinguished between harassment on the basis of sex and harassment on the basis of sexual orientation. The plaintiff must be able to show that the conduct did not merely have offensive sexual connotations, but actually constituted discrimination because of sex. E.g. Evans v. Ga. Reg'l Hosp., 850 F.3d 1248, 1256 (11th Cir. 2017); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000). Courts following this interpretation generally rely on a strict interpretation of Title VII and lack of legislative action to determine that Congress did not intend for “sex” to include “sexual orientation”.

On the other hand, in Scott Medical, the court determined that sexual orientation discrimination is directly actionable under Title VII. It found that sexual attraction qualified as a gender stereotype: “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.” Thus, discrimination on the basis of orientation is, at its very core, discrimination on the basis of sex. In this case, the supervisor was harassing Mr. Massaro because of the stereotype that men are supposed to be attracted to women, and Mr. Massaro’s failure to conform to that stereotype. If Mr. Massaro had been a woman, the supervisor would not have singled him out for harassment. This decision overturned prior Third Circuit precedent holding that sexual orientation is not protected under Title VII.

The Supreme Court has not spoken on the issue, and controlling Eighth Circuit precedent states that “Title VII does not prohibit discrimination against homosexuals.” Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989). It is pertinent to note that this decision is almost twenty-eight years old, and is subject to challenge.

The Takeaway:

It is still unclear whether sexual orientation discrimination is prohibited in the workplace, with the answer being very dependent on where the employer is located. This answer to this question will remain unclear until the U.S. Supreme Court addresses the issue. In the meantime, it is advisable that employers keep up to date on this constantly-evolving issue.

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Reprinted with permission from an article submitted for publication in the December, 2017 Southwest Area Human Resource Association newsletter.