How EEOC’s Sexual Orientation Lawsuits Affect Your Austin Company

With all the sexual misconduct news going on, it’s not surprising that there’s more awareness about sexual discrimination in the workplace.

As an employer, what you may not know is that sexual orientation can be the basis of lawsuits filed against your company.

On March 1, 2016, the Equal Employment Opportunity Commission (EEOC) created history by filing suit against  two private companies for violating Title VII of the Civil Rights Act of 1964 by discriminating against individuals based on their sexual orientation.

A look at these two lawsuits will help us understand what employers need to look out for:

Lawsuit Against Scott Medical Health Center

In its lawsuit against Scott Medical Health Center, a provider of pain management and weight loss services in Pittsburgh, the EEOC claimed that the employer discriminated against Dale Baxley, a gay male employee, based on his sexual orientation.

According to the EEOC, Baxley’s manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life.

Baxley complained to the clinic’s director, who responded that the manager was “just doing his job” and took no action to stop the harassment. After two to three more weeks of continued harassment, Baxley resigned.

Scott Medical Health Center denied the harassment allegations. In a press release, the establishment claimed that it has a policy in place against harassment and a long history of equal opportunity for all, regardless of race, sex, national origin, disability, sexual orientation, age, or religion.

Lawsuit Against Pallet Companies

The EEOC’s lawsuit against Pallet Companies (DBA IFCO Systems), a worldwide provider of reusable plastic containers and subsidiary of Brambles (headquartered in Sydney), alleged that the company discriminated against a woman by terminating her for complaining about harassment based on her sexual orientation.

Yolanda Boone claimed that her supervisor harassed her by repeatedly making comments, sometimes accompanied by sexually suggestive gestures, about her sexual orientation.

The supervisor’s comments reportedly included “I want to turn you back into a woman” and “you would look good in a dress,” according to the lawsuit.

Once, the supervisor blew a kiss at Boone and circled his tongue at her in a suggestive manner, the commission maintained.

Jay Frye, regional general counsel for Brambles in Alpharetta, Ga., denied the allegations made in the lawsuit. “Pallet Companies has a long-standing commitment to providing a work environment in which everyone is treated fairly and with respect, without regard to their sexual orientation, sexual identity, gender, race, nationality, age, disability, religion, marital status or political opinion,” he remarked.

How Companies Can Avoid Sexual Orientation Lawsuits

As we can see from the above allegations, the EEOC intends to stamp out discrimination based on sexual orientation.

Management attorneys advise that proactive employers should update their equal employment opportunity (EEO) policies as needed and train their employees accordingly in order to stay off the commission’s radar.

Understand EEOC’s Rationale Behind Sexual Orientation Discrimination

To effectively enforce EEO policies and protect your company against sexual orientation lawsuits, you first need to understand the reason the commission considers the above two cases a violation of Title VII of the Civil Rights Act of 1964.

While Title VII does not explicitly mention discrimination based on sexual orientation, the EEOC interprets it as such because discrimination that involves treating workers less favorably due to sexual orientation cannot be understood without reference to sex.

As such, sexual orientation discrimination is rooted in noncompliance with sexual stereotypes and gender norms, which are in violation of Title VII. For example, if a manager stereotypically believes that a male employee should date a female and there are employment consequences for that male employee, they have violated Title VII.

Update Your Equal Employment Opportunity (EEO) Policies

Most Fortune 500 companies include sexual orientation in their EEO policies, and many also prohibit discrimination based on gender identity or expression, as noted by Mark Phillis, an attorney with Littler in Pittsburgh.

However, this is no longer a problem only facing big companies. All businesses should update their EEO policies to cover sexual orientation.

Employers “act at their peril” if they don’t include sexual orientation in their EEO policies, Phillis remarked.

To protect your company against sexual orientation lawsuits, include an “individual’s sexual orientation and gender identity and expression” on your EEO lists of items considered as prohibited discrimination, advised Laura O’Donnell, an attorney with Haynes and Boone in San Antonio.

While there has been federal legislation proposed (the Employment Non-Discrimination Act) to add “sexual orientation” as a prohibited discriminatory basis, the fact that the legislation hasn’t been enacted does not trump the plain language of Title VII, which could be read as prohibiting sexual orientation discrimination, Phillis said.

In addition, “Many states and even counties prohibit discrimination on the basis of sexual orientation,” according Jill Vorobiev, an attorney with Sheppard Mullin in Chicago.

She predicted that “more and more courts will interpret Title VII’s prohibition against sex discrimination to encompass sexual orientation discrimination.”

Implement Employee Training to Ensure Compliance

Of course, having an EEO policy isn’t enough. The policy can only protect your company to the extent that it’s being followed.

Even then, the prohibition may only work if you also have a mandatory reporting policy that is followed by employees.

As the two lawsuits above indicate, the challenge for employers is that they could face a sexual orientation discrimination allegation even if just one employee fails to follow the EEO policy.

Arlene Switzer Steinfield, an attorney with Dykema in Dallas advised that corporations need to train employees to be respectful toward people who are lesbian, gay, bisexual, or transgender.

Even though this “isn’t a big deal” for most employees, this issue is “anathema to those who are anti-gay,” said Steinfield. “They may claim it as an encroachment on their belief system.”

As an employer, you need to provide the necessary education and make it clear to all employees that they should not act on their personal prejudices in the workplace.

Steinfield said employers should clarify that they are not asking employees to do anything that interferes with employees’ religious practices, which some may interpret as being against homosexuality. The intention of such education is to treat all with respect without regard to sexuality.

Conclusion

Putting EEO policies in place to prevent sexual orientation discrimination is necessary to help prevent trouble with EEOC.  

More importantly, it’s a message to your employees about your commitment to providing a non-discriminatory environment and will help attract and retain talent more effectively in today’s workplace culture.

Sources

https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm

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Cite this article: Lynch, N. (2017). When Does HR Cross Over Into Law? https://lynchsc.com/insights_1/how-eeocs-sexual-orientation-lawsuits-affect-your-austin-company/.


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