Wednesday, November 9, 2016

Pennsylvania Court Says Title VII Prohibits Discrimination Based On Sexual Orientation

The current efforts towards achieving widespread anti-discrimination protections based on sexual orientation are gaining momentum.  While federal and state legislation has mostly stalled, two court developments suggest acceptance of the EEOC’s interpretation that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation.

The first development was spurred by EEOC litigation in Pennsylvania.  In one case, EEOC v. Scott Medical Health Center, P.C., the EEOC alleged that an employee was subjected to sexual harassment due to his sexual orientation in violation of the sex discrimination prohibition of Title VII.  The EEOC specifically asserted that the employee was subjected to a sexually hostile work environment perpetuated by the Defendant and constructively discharged as a result of the intolerable working conditions.  Just last week, the district court judge in the Eastern District of Pennsylvania ruled that the EEOC correctly interpreted Title VII to prohibit workplace discrimination based on sexual orientation.  In denying a motion to dismiss, the district court found that “there is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.”  The district court judge further explained that “forcing an employee to fit into a gendered expectation — whether that expectation involves physical traits, clothing, mannerisms or sexual attraction — constitutes sex stereotyping and, under Price Waterhouse, violates Title VII.”

The second development, which we reported on earlier, comes from the United States Court of Appeal for the Seventh Circuit.  Last summer, the Seventh Circuit ruled in Hively v. Ivy Tech Community College that Title VII protection did not extend to cover sexual orientation.  In Hively v. Ivy Tech Community College, the plaintiff alleged she was denied a position with the college on the basis of her sexual orientation.  While the decision constituted a considerable strike against the advancement of Title VII protection based on sexual orientation, the Seventh Circuit recently vacated its decision and will now hear the case en banc.

These cases are noteworthy developments.  EEOC v. Scott Medical Health Center, P.C. presents a significant victory for the EEOC and, more significantly, for the expansion of Title VII protection to now include sexual orientation.  Without question, the decision will find its way into the parties’ briefs for the upcoming en banc hearing in Hively v. Ivy Tech Community College.  Although the Seventh Circuit was ambivalent to the claims in Hively v. Ivy Tech Community College, its decision to vacate the three judge panel decision and have the entire court hear the case signals a possible shift towards the conservative court adopting the EEOC’s interpretation of Title VII.