Tag Archives: Anti-discrimination protections

EEOC Enters Historic First Settlement in Sexual Orientation Case

Contributed by Carlos Arévalo, July 20, 2016

settlementBack on our March 8, 2016 blog, we reported about two new lawsuits filed by the EEOC based on sexual orientation. On June 28, 2016, the EEOC reached a historic first settlement on one of these lawsuits. In the case against Pallet Companies, doing business as IFCO Systems North America, the EEOC alleged that the company discriminated against a woman by terminating her for complaining about harassment associated with her sexual orientation. Yolanda Boone, a forklift driver at IFCO’s Baltimore plant, complained that her supervisor harassed her by repeatedly making comments about her sexual orientation. This included comments such as “I want to turn you back into a woman,” “I want you to like men again” and “you would look good in a dress.” Despite Boone’s complaints to management, the harassment continued. Following additional complaints to the general manager and HR, Boone was purportedly terminated.

While the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion, it does not explicitly include sexual orientation as a basis.  Nevertheless, the EEOC maintains that harassment based on sexual orientation is covered under the prohibition against discrimination based on sex. To date, no federal appeals court has issued a ruling adopting the EEOC’s approach to sexual discrimination claims involving sexual orientation.  However, cases are pending in the 2nd, 7th and 11th Circuits.

The settlement award includes $7,200 in back pay, $175,000 in damages to Boone, and $20,000 to the Human Rights Campaign, an LGBTQ advocacy group. As part of the settlement, IFCO will also retain an expert to develop workplace training addressing sexual orientation, gender identity and transgender issues in the workplace.

In light of the terms of the settlement, and as we suggested in our earlier blog, employers nation-wide should review and revise their EEO policies to ensure conformance with the EEOC’s enforcement strategy, even if their state does not already protect sexual orientation. Employers should also ensure that management and supervisory employees are trained to identify potential instances of discrimination and harassment based on sexual orientation, and how to address employee complaints relating to sexual orientation as the failure to do so could have severe legal and financial consequences.

New EEOC Lawsuits Are A Reminder To Ensure Anti-Discrimination Policies Apply To Sexual Orientation

Contributed by Steven Jados

On March 1, 2016, the EEOC announced that it had filed its first two sex discrimination lawsuits based on sexual orientation. One of these cases, filed in the federal district court for the Western District of Pennsylvania, is based on allegations that a gay male employee was subject to anti-gay epithets and other offensive comments about his sexuality and sex life that eventually drove the employee to resign. The other case, filed in the District of Maryland, Baltimore Division, is based on allegations that a lesbian employee’s supervisor made comments regarding the employee’s appearance and sexual orientation, and that she was fired shortly after complaining to her employer.

Discrimination 2Both of these lawsuits were brought under Title VII of the Civil Rights Act of 1964, on the theory that Title VII’s prohibition of sex discrimination encompasses sexual orientation. While the issue of whether Title VII can be enforced so broadly may still be subject to scrutiny and challenge, the EEOC has made it clear that it intends to use Title VII for sexual orientation claims—which means employers should expect to encounter more and more federal law claims based on sexual orientation discrimination and harassment.

With that in mind, we urge employers in states that do not have state-law anti-discrimination protections for sexual orientation to review and reassess their anti-discrimination policies and procedures—including all internal complaint mechanisms—to ensure they contain adequate protections against sexual orientation discrimination and harassment.  In this regard, it is critically important that all management and supervisory employees are trained to identify potential instances of discrimination and harassment based on sexual orientation, and to address employee complaints relating to sexual orientation.

Employers in states that already have sexual orientation discrimination protections should also take note of this EEOC litigation as it has the potential to increase employer exposure to legal liability. For example, in Illinois, the time limit for filing a state law-based sexual orientation discrimination charge is 180 days.  But because the deadline for filing an EEOC discrimination charge for alleged federal law violations is 300 days, the EEOC’s current enforcement strategy for sexual orientation claims extends the period during which employers could face such claims (albeit under federal law). Moreover, staying with the Illinois example, unlike the Illinois Human Rights Act (which contains the Illinois State law prohibition on sexual orientation discrimination), Title VII allows for punitive damages—which drastically increases the potential financial liability employers may face.

The bottom line is that employers nation-wide must update their policies, procedures, and day-to-day practices to conform with the EEOC’s current litigation and enforcement strategy as the failure to do so could have severe legal and financial consequences.