In a historic move, the Equal Employment Opportunity Commission (EEOC) has filed its first two lawsuits for discrimination based on an employee’s sexual orientation.
In most states, it is still legal for employers to fire workers based on their sexual orientation or gender identity; according to the Human Rights Campaign (HRC), an LGBT rights advocacy group, only 19 states and D.C. currently prohibit both of these discriminations. Because there are no federal protections for LGBT employees, the EEOC has called the cases “groundbreaking.”
The cases are on behalf of workers in Maryland and Pennsylvania who say they faced discrimination due to their sexual orientation at their workplaces. The Maryland lawsuit was filed on behalf of Yolanda Boone, who began working at Pallet Companies in Baltimore in September 2013. According to the lawsuit, Boone’s coworkers knew she identifies as a lesbian. Several months after Boone was hired her manager, Charles Lowry, asked her to start working nightshift hours, which she agreed to.
Harassment began when Boone started working the nightshift. Lowry allegedly made comments including, “I want to turn you back into a woman,” “I want you to like men again,” “You would look good in a dress,” “Are you a girl or a man” and “You don’t have any breasts.” He would also quote biblical passages and told Boone that a woman should be with a man.
Boone complained to Anthony Powell, her supervisor, but nothing changed and the harassment continued. Eventually Boone went to human resources with her complaints, which resulted in the company asking Boone to resign. When she refused, she was fired.
The company denied the allegations.
“We strongly disagree with the allegations made in the lawsuit,” Jay Frye, regional general counsel for Brambles Limited (the Australian parent company of Pallet Companies), said. “While we cannot comment publicly on this matter, we will vigorously defend against this litigation.”
In Pennsylvania a lawsuit was filed on behalf of Dale Baxley, who worked as a telemarketer at the Scott Medical Health Center located in Pittsburgh. Baxley alleged that his manager, Robert McClendon, verbally harassed him and called him homophobic slurs on numerous occasions. When McClendon learned that Baxley had a partner he allegedly said, “I always wondered how you f*** have sex” and “Who’s the butch and who is the b****”
Baxley reported the harassment to McClendon’s boss, but no action was taken. Baxley ultimately had no choice but to leave the company. According to the lawsuit, “Baxley resigned in response to the Defendant’s creation of, and refusal to discontinue, a sexually hostile work environment. Defendant knowingly created and permitted working conditions that Baxley reasonably viewed as intolerable and that caused him to resign.”
Federally, employees are not protected from discrimination based on their sexual orientation. But the EEOC is trying to ensure that those who suffer discrimination still see justice.
“With the filing of these two suits, EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation,” said David Lopez, general counsel for the EEOC, in a statement. “While some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so.”
Title VII of the Civil Rights Act of 1964 states:
“It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex or national origin; or
(2) to limit, segregate, or classify his current employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
The EEOC made headlines last year in the case of David Baldwin, who alleged he was discriminated against during his employment with the Federal Aviation Administration. The EEOC found that discrimination against sex, as stated in Title VII, also applies to discrimination based on sexual orientation in federal workplaces; the ruling states, “Indeed, we conclude that sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”
This ruling opened the door for more sexual orientation discrimination lawsuits, which the EEOC has been accepting since 2013. And while it has not brought up any federal charges until now, the EEOC has not only attained an estimated $6.5 million over the past three years in monetary relief for workers who filed discrimination complaints but also successfully got hundreds of employers around the country to change their workplace policies to ban discrimination based on sexual orientation.
According to EEOC Commissioner Chai Feldblum, while federal rulings do not always correspond with the EEOC, the EEOC has often “been ahead of the courts” in terms of defining discrimination. She also said that, ultimately, courts “often defer” to what the EEOC determines constitutes as discrimination. If this were to happen with these two federal lawsuits, it would be a significant step in the right direction for LGBT rights.
Lowell Kuvin, Baldwin’s attorney, said that Baldwin’s case and therefore similar ones could potentially be even bigger than the marriage equality ruling in June.
“Mr. Baldwin’s case has the ability to affect more people than the [Supreme] Court’s Obergefell [marriage] case because there are more gay men and women who have jobs than same sex couples who want to get married,” Kuvin said at the time.