Another Federal Court Adopts EEOC Theory That Title VII Covers Sexual Orientation Discrimination

Edgar M. Rivera, Esq.

On November 4, 2016, the Western District of Pennsylvania—joining the Middle District of Alaska, District of the District of Columbia, District of Oregon, and Central District of California—held that a gay person has standing to bring a sex discrimination claim under Title VII of the Civil Rights Act of 1964 (Title VII). In EEOC v. Scott Medical Health Center, the Complainant, Dale Baxley, alleges that his supervisor, Robert McClendon, Scott Medical Health Center’s telemarketing manager, subjected him to a hostile work environment because he is a gay man. After Scott Medical Health Center’s president and chief executive officer allegedly ignored his complaint about the discrimination and harassment, Mr. Baxley quit.

In the complaint, Mr. Baxley alleges that Mr. McClendon called him a “fag,” “faggot,” “fucking faggot,” and “queer,” and, after learning that Mr. Baxley had a male partner, made statements such as “I always wondered how you fags have sex,” “I don’t understand how you fucking fags have sex,” and “Who’s the butch and who is the bitch?” The Equal Employment Opportunity Commission (EEOC) argued that Title VII covered this type of harassment as, had it not been but for Mr. Baxley’s sex, he would not have been subjected to this harassment. The court agreed, stating that Title VII’s “because of sex” provision prohibits discrimination on the basis of sexual orientation.

Scott Medical Health Center (SMHC) argued that Third Circuit precedent—as articulated primarily in Bibby v. Philadelphia Coca-Cola Bottling, Co.—foreclosed any argument that Title VII covered sexual orientation discrimination. The court disagreed, stating that SMHC had missed the point; although Title VII did not cover sexual orientation discrimination, the EEOC’s argument was that the at-issue harassment was sex-based discrimination, and the Third Circuit never ruled on whether “sexual orientation discrimination is sex stereotyping.” Further, the Third Circuit never addressed the issue of whether discrimination based on a man being in a relationship with another man violated Title VII’s prohibition against sex-based association discrimination.

Agreeing with the EEOC, the court relied primarily on Price Waterhouse v. Hopkins, where the U.S. Supreme Court held that Title VII covered sex stereotyping, to conclude that the complained-of conduct in EEOC v. Scott Medical Health Center violated Title VII. Price Waterhouse “inform[ed] and controll[ed] the instant analysis” because “there is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.” The court further noted 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 also relied on significant intervening legal developments since the Bibby decision.  First, the court questioned whether past decisions’ reliance on Congress’s inaction to expand Title VII to cover sexual orientation discrimination supported the conclusion that Title VII did not cover sexual orientation discrimination. Second, the court viewed the Supreme Court’s opinion legalizing gay marriage as demonstrating “a growing recognition of the illegality of discrimination on the basis of sexual orientation.” The court stated:

That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and 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.

The court denied SMHC’s motion to dismiss the claims, and the case will proceed to discovery.

In New York, employees are protected against workplace sexual orientation discrimination under the New York State and the New York City Human Rights Laws.  If you believe that you have been discriminated against at work because of your sexual orientation, contact The Harman Firm, LLP.