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Is Sexual Orientation Discrimination the same as Sex Discrimination?

With the Equal Employment Opportunity Commission (EEOC)’s recent filing, we may be a step closer to knowing whether Title VII might be interpreted to provide the same protection to sexual orientation as it does to sex discrimination.

The EEOC’s two recent cases originate in Pennsylvania and Maryland, stating that a gay male employee and a lesbian employee were subjected to “hostile work environments because of their sex.” Last July, in a 3-2 decision, the EEOC ruled that sexual orientation discrimination is “sex” discrimination, which is an explicit part of Title VII of the Civil Rights Act of 1964.

The EEOC’s ruling can be tied back to the 1998 U.S. Supreme Court opinion in Oncale v. Sundowner, in which Justice Antonin Scalia stated that while male-on-male sexual harassment “was assuredly not the principal evil Congress was concerned with when it enacted Title VII…statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

The first case the EEOC filed, against Scott Medical Health Center, in Pennsylvania, alleges that the employee’s manager repeatedly referred to the employee by anti-gay epithets and made other offensive comments about the employee’s sex life and sexuality. The employee went to the director to complain and was told the manager was simply doing his job, and refused to take action to end the harassment.

In the Maryland case against IFCO Systems, the EEOC charges that a lesbian employee was harassed by her male supervisor because the supervisor repeatedly made comments about her sexual orientation and appearance. The company fired the employee a few days after she complained about the incidents.

While the EEOC’s decision is groundbreaking and the views of what falls under the scope of Title VII, they are not binding on the Courts. To date, Congress has refused to add “sexual orientation” to the list of Title VII discriminatory acts and employment protections. In addition, sex discrimination is already covered under Title VII in relation to housing and education. This might mean that in the future, if sexual orientation will be considered “sex discrimination,” it could mean that definition and protection will extend to other areas such as housing discrimination or education discrimination. Certainly, as this area of law continues to develop, the upcoming elections will play a large role.

You may be entitled to file a case with the EEOC because of sex-based or sexual orientation discrimination. If you feel you have been discriminated against based on your gender, gender identity, or sexual orientation, call to schedule a free consultation with one of our experienced employment discrimination attorneys today.

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