New EEOC Lawsuits Seek to Expand Title VII to Protect Sexual Orientation

By Don Benson

The EEOC has filed two new cases alleging sex discrimination based on sexual orientation:

• In EEOC v. Scott Medical Health Center, P.C., (W.D. Pa., No. 2:16-cv-00225-CB, filed March 1, 2016). The EEOC sued Scott Medical Health Center, P.C., a provider of pain management and weight loss services, alleging that it discriminated against charging party Dale Baxley on the basis of sex in violation of Title VII when it subjected him to harassment because of his sexual orientation and/or because he did not conform to the employer’s gender-based expectations, preferences, or stereotypes. The Commission further alleges that the defendant failed to take action to stop the harassment after Baxley complained, resulting in his constructive discharge. According to the EEOC’s lawsuit, Baxley’s immediate supervisor knew that Baxley was gay and frequently assailed him with highly offensive anti-gay epithets, and other vulgar epithets based on sex stereotypes. When Baxley complained about the harassment to the medical director, the medical director took no corrective action. After two to three more weeks of continued harassment, Baxley resigned to avoid being subjected to the highly offensive conduct. The EEOC is seeking injunctive relief to prohibit Scott Medical Health Center, P.C. from engaging in unlawful sex discrimination in the future, as well as backpay, compensatory damages, and punitive damages for Baxley.

• EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc. (“IFCO”), (D. Md., No. 1:16-cv-00595-RDB, filed March 1, 2016). The EEOC sued IFCO, a provider of reusable plastic containers, alleging that it discriminated against charging party Yolanda Boone on the basis of sex by terminating her for complaining about harassment. The Commission alleges that Boone, a lesbian woman, was harassed because of her sexual orientation and/or her non-conformity with the employer’s gender-based expectations, preferences, or stereotypes in violation of Title VII. According to the EEOC’s lawsuit, Boone’s supervisor harassed Boone by repeatedly making comments, sometimes accompanied by sexually suggestive gestures, to Boone about her sexual orientation and nonconformity with stereotypical female gender norms. A few days after Boone complained to management and called IFCO’s employee hotline to complain, IFCO terminated her employment in retaliation. The EEOC seeks injunctive relief to prohibit IFCO from engaging in unlawful sex discrimination in the future, as well as backpay, compensatory damages, and punitive damages for Boone.

Title VII does not expressly prohibit discrimination on the basis of sexual orientation.

In the past, the EEOC has taken the position that Title VII’s prohibition against sex-based discrimination could be extended to protect sexual orientation in many fact situations under an analysis that discrimination against someone because of sexual orientation was really discrimination against that employee because the employee failed to meet sex-based stereotypes. David Baldwin v. Dep’t of Transportation, EEOC Appeal No. 120133080 (July 15, 2015) 

These new EEOC cases seek to directly protect against discrimination based on sexual orientation without going through the more convoluted sexual stereotype analysis.

Not every employee who suffers sexual orientation discrimination will be able to present evidence that the decision maker or harasser was motivated by stereotypes of how “macho” a male should be or how “girly” a female should act or dress. A direct protection of sexual orientation could simplify factual burdens for plaintiffs and protect a broader range of employees in circumstances where there is no evidence about stereotype beliefs.

The political effect of these cases is hard to predict. If the cases survive challenge, it could be argued that there is no need to add new legislation to protect sexual orientation on the federal level. If the cases are found to have over-reached in the interpretation of Title VII, it may provide additional support for those proponents of new legislation to protect sexual orientation.

As a side note, the EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012),