March 18, 2016 Practice Points

New Historic Developments in Federal Sexual-Orientation-Discrimination Protections

The EEOC recently brought two cases pursuant to the agency’s strategic enforcement plan.

By Nancy Marcus – March 18, 2016

In March 2016, the federal Equal Employment Opportunity Commission (EEOC) commenced two historic sexual-orientation-discrimination actions in federal court, pursuant to the EEOC's strategic enforcement plan's prioritization of "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply." The cases brought by EEOC agency attorneys alleging unlawful sexual-orientation-discrimination in violation of Title VII include EOC v. Scott Medical Health Center, P.C., (W.D. Pa., No. 2:16-cv-00225-CB, filed March 1, 2016) (involving both sexual orientation harassment and gender-nonconformity-discrimination claims by a health-center employee) and EEOC v. Pallet Companies (D. Md., No. 1:16-cv-00595-RDB, filed March 1, 2016) (involving claims of sexual-orientation harassment, gender-nonconformity-discrimination claims, and retaliation claims by a lesbian employee at a plastics company). The EEOC has also been actively pursuing Title VII claims on behalf of transgender, and otherwise gender-nonconforming, individuals who have suffered employment discrimination in the workplace in recent years.

The EEOC encourages attorneys representing LGBT clients who have suffered employment discrimination to avail themselves of the resources of the federal agency, and of the legal relief now widely recognized as being available under Title VII to those discriminated against on the basis of sexual orientation and gender identity. Although the statutory language under Title VII has not changed, the EEOC explains the evolving approach to LGBT protections under the statute as follows:

Through investigation and litigation of charges by individuals against private sector employers, as well as hearings and appeals for federal sector workers, the Commission has taken the position that existing sex discrimination provisions in Title VII protect lesbian, gay, bisexual, and transgender (LGBT) applicants and employees against employment bias. The Commission has obtained approximately $6.4 million in monetary relief for individuals, as well as numerous employer policy changes, in voluntary resolutions of LGBT discrimination charges under Title VII since data collection began in 2013. A growing number of court decisions have endorsed the Commission's interpretation of Title VII.

Keywords: litigation, civil rights, LGBT, EEOC, employment

— Nancy Marcus, Indiana Tech Law School

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