By: Amy Epstein Gluck

The Equal Employment Opportunity Commission (EEOC) recently entered into a consent decree with a Tex-Mex restaurant in Gainesville, Virginia (up to an hour from the DMV—without traffic) settling a lawsuit alleging that restaurant employees, including other servers and kitchen staff, subjected a gay male server to “unwelcome harassing and offensive behavior” that included the use of homophobic slurs and insults about his sexuality.

The employees also harassed the server’s straight friend, another employee, because they were friends. The two reported the harassment to management, who ignored them, and the harassment continued.

You can read about the settlement here (and the monetary relief the restaurant was ordered to pay), in EEOC v. Mejia Corp., d/b/a El Tio Tex-Mex Grill, Case No. 1:18-cv-01226-MSN).

Sound familiar?

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EEOC be like: employers ignore complaints about sexual harassment at their peril.

What’s the EEOC’s Position on Sexual Orientation Discrimination?

The EEOC shows no signs of slowing down to bring claims against managers who ignore claims of sexual harassment.

Indeed, in the news release for the aforementioned settlement, EEOC Regional Attorney Debra M. Lawrence said “The EEOC is committed to ensuring that no employee or applicant is discriminated against or harassed based on sexual orientation.”

Plus, as we’ve told you here and here, the EEOC prosecutes charges of discrimination and harassment based on sexual orientation so…SMH as to managers who ignore such complaints.

The EEOC interprets “sex” to include discrimination against lesbian, gay, bisexual, and transgender rights as discrimination based on or because of “sex.” Additionally, the EEOC accepts complaints of sexual orientation and gender identity discrimination in employment based on sex discrimination in violation of Title VII of Civil Rights Act of 1964 (Title VII).

In fact, the EEOC includes LGBTQ rights in its 2017-2020 Strategic Enforcement Plan. (Click here if you don’t know what the heck a strategic enforcement plan is.)

But….The Supremes Say…

Nothing yet.

As we told you here, the U.S. Supreme Court is poised to determine the “law of the land” on whether Title VII prohibits discrimination based on sexual orientation in the cases:

  1.  Altitude Express v. Zarda
  2. Bostock v. Clayton County, Georgia

in addition to transgender status.

But, even if The Supremes determine that Title VII does not prohibit LGBTQ discrimination, many states and localities have already passed laws banning these types of discrimination.

In Zarda, the U.S. Court of Appeals for the Second Circuit concluded that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination” in its determination that an employee was fired just because of her failure to conform to sex stereotypes, in violation of Title VII. That court stated:

…Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex, and thus the EEOC should have had the opportunity to prove that the [the employer] violated Title VII by firing Stephens because she is transgender and transitioning from male to female.

…It is analytically impossible to fire an employee based on that employee’s status as transgender … without being motivated, at least in part, by the employee’s sex.

By contrast, the Bostock case in Georgia was brought by a child welfare services coordinator who said he was fired for being gay. The 11th Circuit, in Atlanta, ruled against that plaintiff in a short, unsigned opinion that cited a 1979 decision that had ruled that “discharge for homosexuality is not prohibited by Title VII.”

As  that it will hear the trio of cases and decide whether Title VII protects employees from workplace discrimination based on sexual orientation and transgender status.

One thing everyone seems to be able to agree on, and SCOTUS has ruled on it, is that sex stereotyping is a form of sex discrimination and violates Title VII.

Discrimination on the basis of gender stereotypes, i.e., how a person should look, dress, and act, is illegal.

Employer Takeaways

However SCOTUS rules, employers want to keep these takeaways in mind:

  • Ensure anti-discrimination and anti-harassment policies in an employee handbook includes a prohibition against sex stereotyping.
  • Ensure all employees, including supervisors, understand these anti-discrimination and anti-harassment policies;
    • What does that mean? Training. Good training.
    • It also means obtaining a signed acknowledgement that each employee has reviewed and understood their obligations.
  • Provide regular, interactive training to your employees, yes, but to your supervisors and HR staff too so that they can recognize, respond to, and prevent unlawful discrimination and harassment based on sex stereotypesGive examples, fact-based scenarios, and pop quizzes. IGNORING complaints of harassment does you no favors.
  • Ensure that senior leaders promote anti-harassment training and anti-discrimination/harassment policies to show commitment from the top of the organization to the bottom.

The EEOC continues to investigate employees’ claims of “sex” discrimination, including those based on sexual orientation. So, employers, ignore employee complaints about sexual orientation harassment and discrimination at your peril.