The EEOC recently filed two lawsuits in federal court alleging gender discrimination against employers who allegedly discriminated against employees based on sexual orientation — one in a federal court in Pennsylvania. The filing of these suits demonstrates the EEOC’s commitment to protecting individuals that are discriminated against in the workplace because of sexual orientation. Although no federal or state law in Pennsylvania expressly prohibits employment discrimination on the basis of sexual orientation in the private sector, the EEOC is pushing the courts to recognize this type of discrimination under Title VII.
Currently, Title VII, the federal workplace antidiscrimination law, does not expressly prohibit discrimination based on sexual orientation. Neither does the applicable state law, the Pennsylvania Human Relations Act. Nevertheless, the recent suits filed by the EEOC demonstrate their position that discrimination based on sexual orientation is gender discrimination under Title VII. Some courts also have recognized “gender stereotyping” discrimination as a form of sex discrimination prohibited by Title VII. This type of discrimination involves discrimination against an employee because he or she does not conform to gender stereotypes. It can apply to a male who is discriminated against because he acts feminine or a woman who is discriminated against because she acts masculine. Courts have held that this theory may be available where an employee alleges discrimination that involves his or her sexual orientation.
In addition, independent of federal or state law, protections exist prohibiting workplace discrimination based on sexual orientation in the form of local ordinances. These local ordinances are in place in approximately 33 counties and municipalities in Pennsylvania. For example, the Philadelphia Fair Practices Ordinance prohibits discrimination in employment based on sexual orientation. Likewise, Allegheny County, Eerie County, Allentown, Bethlehem, Easton, Harrisburg, Pittsburgh, Reading, and Scranton also have local ordinances prohibiting discrimination in the workplace based on sexual orientation.
The recent suits filed by the EEOC are a strong reminder to employers that they need to be prepared for more aggressive enforcement actions by the EEOC where employees claim discrimination based on their sexual orientation. An employer who does not properly address discrimination claims based on sexual orientation proceeds at its own peril.