EEOC Victory Regarding Harassment Based On Sexual Orientation – Part I

This is the first of two Alerts.  Part I below discusses EEOC v. Scott Medical Health Center [2016 U.S. Dist. LEXIS 153744], decided on November 4, 2016 by Judge Cathy Bisoon of the Western District of Pennsylvania.  The Scott ruling is summarized here.  Part II puts the Scott ruling into the broader historical context of cases involving sexual orientation claims in Title VII.

The allegations in Scott are that Dale Baxley, an openly gay male, was sexually harassed and constructively discharged by his supervisor, Robert McClendon.  The defendant filed a motion to dismiss, claiming (in addition to procedural issues) that Title VII does not protect discrimination based on sexual orientation.  This motion was denied, and the reasons offered by Judge Bisoon represent, I think, a major victory for the EEOC’s most recent push into why it considers discrimination based on sexual orientation a violation of Title VII.

There are three key reference cases.  The first is Justice Scalia’s ruling in Oncale v. Sundowner (1998) [53 U.S. 75] that same-sex harassment violates Title VII only if the harassment is “because of sex.”  The EEOC made a three-part argument to support its belief that discrimination based on sexual orientation is discrimination because of sex. First, the EEOC argued that Baxley was targeted because he is a male; had he been intimately involved with a woman, he would not have been targeted.  Second, the EEOC argued that Baxley was targeted because of his intimate relations with individuals of the same sex, which necessarily brings Baxley’s sex into account.  Third, the EEOC argued that Baxley was targeted because he did not conform to stereotypical beliefs regarding how men should behave.

Judge Bisoon treated these as a single argument, ruling:

The Court views this as the same argument articulated in three different ways, with the singular question being whether, but for Mr. Baxley's sex, would he have been subjected to this discrimination or harassment. The answer, based on these allegations, is no.

The second important reference case is Price Waterhouse v. Hopkins (1988) [490 U.S. 228], a sex discrimination in promotion case in which Ann Hopkins, who was denied promotion to partner at Price Waterhouse, presented evidence that she was the subject of derogatory sexual stereotypes based on how the decision-making partners believe women in the workplace should act. The partners were on record for having made numerous derogatory remarks (e.g., she is macho, is overcompensating for being a woman, she should go to charm school, she needs to work more femininely, and many more).  Using this case as a reference, Judge Bisoon ruled:

There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. As the EEOC states, "[d]iscriminating against a person because of the sex of that person's romantic partner necessarily involves stereotypes about 'proper' roles in sexual relationships — that men are and should only be sexually attracted to women, not men." This discriminatory evil is more than reasonably comparable to the evil identified by the Supreme Court in Price Waterhouse. Indeed, the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two.

In other words, conforming to heterosexual norms is as stereotypical as the views that were espoused by the partners at Price Waterhouse.

The third important reference case is Bibby v. Philadelphia Coca-Cola Bottling Co. [260 F.2d 237 (CA3 2001] in which Bibby, an openly gay male, was subjected to name calling and physical assault.  The 3rd Circuit (the relevant one for the Scott case) ruled there was no sexual component to the assault and that Bibby “did not make any argument that sexual orientation discrimination is sex stereotyping.” At the time, the EEOC put forth the same three reasons as in Scott, to no avail.

However, Judge Bisoon used the very reasoning the 3rd Circuit used against Bibby in favor of Baxley; that a charge of sexual stereotyping was made by the EEOC in Scott case, but not Bibby, and that this is a critical difference between the two cases.  Judge Bisoon added two additional considerations.  The first is that Bibby relied on the then proposed Employment Non-Discrimination Act (ENDA) which had been poorly received in Congress.  Judge Bisoon ruled that reliance on “Congressional inaction” is inappropriate and did not relate to arguments about sex stereotyping.  Second, and perhaps more interesting, Judge Bisoon cited the Supreme Court’s recent ruling on gay marriage (Obergefell v. Hodges [135 S.Ct. 2071 (2015)], echoing the Supreme Court’s ruling regarding “new insights and societal understandings …. within our most fundamental institutions.”  Ultimately, Judge Bisoon ruled:

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. Because this Court concludes that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII's prohibitions on discrimination "because of sex," Defendant's Motion to Dismiss on the ground that the EEOC's Complaint fails to state a claim for which relief can be granted will be denied.

End of Part I ---- stay tuned for Part II.

By Art Gutman, Ph.D., Professor, Florida Institute of Technology

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