While many municipalities, including, locally, the cities of Allentown, Bethlehem, and Easton, have had sexual orientation discrimination ordinances in place for years, federal law has yet to officially expand to include sexual orientation as a protected classification, for purposes of employment discrimination laws. The Western District Court of Pennsylvania may have to decide whether sexual orientation is a protected classification under federal employment discrimination law.
Among others, one of the main sources of employment discrimination claims is Title VII of the Civil Rights Act of 1964 (“Title VII”).
Title VII prohibits discrimination on the basis race, color, religion, sex, or national origin, and other protected characteristics. The Equal Employment Opportunity Commission (“EEOC”), the federal agency that is charged with the administration, interpretation, and enforcement of Title VII, determined, on July 15, 2015, in a federal sector decision, that sexual orientation is a form of discrimination because of sex. At the beginning of this month, the EEOC, in an effort to continue to solidify its commitment to prohibiting sexual orientation discrimination, filed two lawsuits against workplaces, one of which was in Pennsylvania.
On March 1, 2016, in the Western District Court of Pennsylvania, the EEOC filed suit against Scott Health Medical Center (the “Medical Center”), alleging that the EEOC was unable to reach a settlement agreement with the Medical Center, after the EEOC concluded that an employee of the Medical Center was subject to sex discrimination on the basis of sexual orientation. According to the allegations of the EEOC, since at least May 2013, a supervisor, who had the authority to hire and fire, subjected an employee to a continuing course of unwelcome harassment because of the employee’s sexual orientation. From about mid-July 2013 until on or around April 19, 2013, the supervisor is alleged to have used derogatory terms toward the employee, based on the employee’s sexual orientation, at least three to four times per week. During this time, the manager is alleged to have made insulting comments about the employee’s personal relationship with his partner, to whom the employee is now married.
On or around August 19, 2013, the employee informed the president of the Medical Center of his supervisor’s comments. In response to the employee’s report, the president of the Medical Center is alleged to have expressly refused to take any action. The EEOC alleges that it was because the president allegedly refused to take action that the employee subsequently resigned. After his resigning, the employee filed a charge of discrimination with the EEOC.
The EEOC found that, where the employee resigned in response to the Medical Center president’s refusal to take action, the employee was “constructively discharged.”
It is important that employers understand what is meant by the term “constructive discharge.” Even where an employee is not actually terminated, a successful claim may be brought against an employer where an employee resigns in the face of a hostile work environment. In most cases, in order to bring a valid claim of constructive discharge, it must be shown that the employee informed a decision maker of the hostile environment. In the EEOC’s complaint in federal court, it is alleged that, by constructively discharging the employee, the Medical Center, on the basis of the employee’s sexual orientation, denied the benefits of employment.
To date, the EEOC’s complaint is pending in court. A response to the complaint should be filed before the end of the month. Although, at this point, none of the allegations have been proven to be true, there are a few valuable take away points for employers:
- Clearly, employers need to be mindful of sexual orientation discrimination in the workplace.
- Reports of derogatory and offensive comments regarding an individual’s sexuality, even if intended as a “joke,” must be taken seriously and investigated.
- Managers on all levels should be trained on spotting potential scenarios that could even have the appearance of being sexual orientation discrimination.
- Employee handbooks and policies must inform employees that sexual orientation discrimination, including harassment, will not be tolerated and should be immediately reported, according to the procedure provided in the policy.
- When an employee reports that he or she believes that sexual orientation discrimination may have occurred, employers should investigate every single claim, even if it is not yet the law in Eastern Pennsylvania.
If you have any questions on drafting or implementing employer policies regarding sexual orientation discrimination or investigating employees’ claims of discrimination, please do not hesitate to contact an attorney in the KingSpry Employment Law Practice Group.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
