EEOC Wins Its First-Filed Sexual Orientation Discrimination Case
A federal district court in Pennsylvania found the EEOC established that an employer had engaged in sexual orientation discrimination against a former employee in violation of Title VII. In so doing, the court added to the split among federal courts regarding whether sexual orientation discrimination is discrimination based on sex under Title VII.
On March 1, 2016, the EEOC announced that it was filing its first two sexual discrimination lawsuits based on sexual orientation discrimination. One of those lawsuits was EEOC v. Scott Medical Health Center, P.C., in which the federal district court has now ruled in favor of the EEOC and awarded the maximum amount of damages permitted under Title VII. The court’s ruling continues the divide among federal courts and federal agencies over the issue of whether Title VII’s prohibition on sex discrimination includes sexual orientation discrimination.
At this point, the EEOC is strongly committed to the position that Title VII prohibits sexual orientation discrimination – a position that was previously supported by the Department of Justice under the Obama Administration. As we discussed in our August 2017 E-Update, however, in another case currently before the entire (en banc) U.S. Court of Appeals for the Second Circuit, Zarda v. Altitude Express dba Skydive Long Island, the DOJ under the Trump Administration has now reversed course and rejected the EEOC’s position. Previously in that case, a panel of the Second Circuit had refused to expand Title VII coverage to include sexual orientation – a decision that is currently being reconsidered by the en banc court. In so holding, the Second Circuit panel joined the Eleventh Circuit, which came to the same conclusion in Evans v. Georgia Regional Hospital. On the other hand, in Hively v. Ivy Tech Community College, the en banc Seventh Circuit reversed an earlier panel ruling in that same case and held that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII.
Given the currently existing split among federal courts, particularly at the appellate level, it is likely that this issue is headed for the Supreme Court. Until then, employers should recognize that the approach to this issue will vary by jurisdiction – and may even change in those jurisdictions if other federal appellate courts join the Seventh Circuit in rejecting their prior position.