EEOC Lawsuits Over Sexual Discrimination May Portend a Shift in Federal Anti-Discrimination Law

Aside from the federal floor on prohibited workplace conduct set by provisions of the Civil Rights Act of 1964 and the courts’ interpretations of these laws, some states have also enacted higher standards including additional classes and additional types of prohibited conduct. As such, something of a patchwork of standards and prohibitions has developed. Of particular note, there is currently no federal standard prohibiting discrimination on the basis of sexual orientation.

However, two recent lawsuits filed by the Equal Employment Opportunity Commission seek to establish a new protected class under federal law. The protected class would cover discrimination due to sexual orientation if retaliatory action was taken by managers and supervisors for complaints regarding the same.  Employers doing business in any of the 50 states should keep a close eye on this matter and, ideally, take action to correct potentially non-compliant actions in the near-term.

What Workplace Conduct Does the Civil Rights Act of 1964 Prohibit?

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of a person’s race, religion, gender, or national origin. However, this act is far from the only law guiding employers regarding workplace behaviors and practices. The Equal Pay Act of 1963 sets forth laws regarding equal pay standards for men and women who perform similar work. Age discrimination against workers 40 years or older is addressed in the Age Discrimination Act of 1967. The ADA concerns discrimination in employment against individuals with disabilities. These are but a few of the laws guiding and setting forth acceptable workplace practices. These laws are all enforced by the EEOC. Notably, to date, none of these federal laws have been interpreted to prohibit discrimination due to sexual orientation. However, some courts have identified protection against discrimination due to gender stereotyping.

EEOC’s Arguments Should be Understood and Heeded by Employers

Senior legislative counsel for the EEOC states that “We believe it should put all employers on notice that they must comply with civil rights law and not discriminate against an employee based on LGBT status.” Furthermore, the EEOC’s strategic plan states a goal of, “prioritize[ing] issues that may be emerging or developing.” The EEOC recognizes the “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions,” as a developing issue. In light of the recent recognition of same-sex marriage as a federal right by the Supreme Court in Obergberfell and a general trend towards the expansion of protections for gay, lesbian, and transgendered individuals, there is a reasonable likelihood that lower federal courts will recognize additional protected classes in the two suits filed by the EEOC.

One interesting wrinkle, in this case, is that one case arises out of alleged actions taking place in Maryland while the other arose out of alleged conduct occurring in Pennsylvania. While Maryland state law recognizes sexual orientation as a protected class, Pennsylvania state law does not.  Thus, while there is potentially a grounds for the court to decide the matter on alternate grounds in the Maryland matter, it is more likely to rule on the merits of the case arising in Pennsylvania.

The Employers’ Response to the Lawsuits  

Both employers deny that the alleged conduct occurred and furthermore state a clear desire to prohibit discrimination and harassment of any type. A spokesperson for the Pennsylvania employer stated, “the company has a written policy against harassment, which is strictly enforced. We are proud of our long history of equal opportunity for all, regardless of race, sex, national origin, disability, sexual orientation, age, or religion. We will vigorously defend ourselves against the false claims made by the EEOC.” The Maryland employer echoed similar sentiments, stating that it strongly disagrees with the allegations made in the lawsuit, does not discriminate and values diversity in its business and culture.

Address Workplace Discrimination Issues With a Knowledgeable Litigation Attorney

Addressing potential legal challenges and instituting clearly compliant employment standards and practices is a key step in managing business litigation risk. While the law and claims regarding discrimination on the basis of sexual orientation are still based solely on state law, many corporations and businesses have already adopted policies prohibiting the conduct of this type. If your company is considering implementing a similar policy, business lawyer William S. Heyman can help. If your firm is already in a dispute over workplace discrimination, put Mr. Heyman’s more than 20 years of litigation experience to work for you. To schedule a confidential consultation call 410-762-0140 or schedule an appointment online.