eeoc.gov

On March 1, EEOC filed the U.S. government's first sex discrimination lawsuit based on sexual orientation, U.S. EEOC v. Scott Medical Health Center (Case 2:16-cv-00225-CB), in U.S. District Court for the Western District of Pennsylvania in Pittsburgh. In its complaint, EEOC charged that a gay male employee was subjected to sex discrimination in the form of harassment because of his sexual orientation and then forced to quit his job rather than endure further harassment. In response to EEOC's lawsuit, the defendant filed a motion to dismiss the case.

In a decision issued on Nov. 4 by U.S. District Judge Cathy Bissoon, the court denied Scott Medical Health Center's motion to dismiss EEOC's case. In its ruling, the court found that sexual orientation discrimination is a type of discrimination "because of sex," which is barred by Title VII. Applying decisions of the U.S. Supreme Court finding that Title VII's ban on sex discrimination includes adverse treatment of workers based on "sex stereotypes," i.e. pre-conceived ideas of how a man or a woman should act or think, the federal court stated, "There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality."

The court's decision is consistent with EEOC's reading of Title VII's sex discrimination ban. As the federal law enforcement agency charged with interpreting and enforcing Title VII, EEOC has previously concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination. On July 15, 2015, EEOC, in a federal sector decision, determined that sexual orientation discrimination is, by its very nature, discrimination because of sex. See Baldwin v. Dep't of Transp., Appeal No. 0120133080 (July 15, 2015).

In that case, EEOC explained the reasons why Title VII's prohibition of sex discrimination includes discrimination because of sexual orientation: (1) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and (3) sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.

This sounds almost exactly like the language used by Gorsuch on Monday but this ruling was a few years ago.