Judge Bissoon’s Title VII ruling sets stage for appeal

NOTE:  This article originally appeared in the February 3, 2017 edition of the ACBA Lawyers Journal.

Landmark decision determines employers can’t discriminate due to sexual orientation

On November 4, 2016, District Judge Cathy Bissoon of the U.S District Court for the Western District of Pennsylvania, ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on sexual orientation.  Bissoon is one of the first federal judges to hold that federal law forbids sexual orientation discrimination by employers.  Although her landmark ruling is not binding on other federal courts in Pennsylvania, it probably will be appealed to the 3rd Circuit, and if the 3rd Circuit affirms the ruling, Title VII would prohibit employers across the state from discriminating against employees based on their sexual orientation.

Title VII has transformed many facets of the employer-employee relationship since it was signed into law by President Lyndon Johnson on July 2, 1964.  Borne out of the civil rights movement, the statute prohibits workplace discrimination based on several factors, including race, color, religion, and sex.  For more than 50 years, however, federal courts have held that discrimination “because of sex” does not include sexual orientation.  Some members of Congress repeatedly tried to enact legislation to protect gay and lesbian employees in the workplace over the last 40 years, but these bills never became law.  This means that no federal law prevents employers from discriminating against employees based on their sexual orientation.  Many states – including Pennsylvania – also do not prohibit workplace sexual orientation discrimination, so aggrieved employees often have no recourse under federal or state law.

Given that new federal legislation is not forthcoming, the Equal Employment Opportunity Commission, the federal agency responsible for enforcing workplace discrimination law, recently decided to argue that Title VII already bars sexual orientation discrimination by employers.  On March 1, 2016, the EEOC filed its first two cases that made this argument.  One of these cases, EEOC v. Scott Medical Center, landed in Bissoon’s court.

In Scott Medical, the EEOC alleged that a company manager harassed a gay male employee about his relationship with another man.  The employee reported the manager’s conduct to the company president, but the president did not punish the manager.  The male employee eventually resigned.

The EEOC argued that the manager’s harassment of the male employee based on his sexual orientation qualified as discrimination “because of sex” under Title VII.  The EEOC contended that the manager’s harassment was “because of sex” because if the employee were a woman – rather than a man – the manager would not have harassed him about his relationship with another man.  Scott Medical moved to dismiss the complaint, asserting that sexual orientation discrimination is not prohibited by Title VII.

Bissoon denied Scott Medical’s motion to dismiss and ruled that Title VII’s prohibition against discrimination “because of sex” also prohibits discrimination based on sexual orientation.  She found no meaningful difference between “sexual orientation” discrimination and discrimination “because of sex” because sexual orientation discrimination always involves judgments or stereotypes about how a person should behave based on their sex.  As such, sexual orientation discrimination inevitably is discrimination “because of sex.”  Bissoon concluded:

“That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.”

Bissoon’s decision will not end the issue of whether Title VII prohibits employers from engaging in sexual orientation discrimination.  Federal courts in other jurisdictions now are hearing similar cases.  For example, unlike Judge Bissoon, the Seventh Circuit recently declined to extend Title VII’s protection to sexual orientation claims.  The Second Circuit and Eleventh Circuit have heard similar cases this year; decisions are expected soon in both cases.  Regardless of how the issue plays out in courtrooms across the country, Bissoon’s ruling is an important development in this area of the law because it sets the stage for an appeal to the 3rd Circuit.  That decision should clarify whether federal law prohibits sexual orientation discrimination by employers in Pennsylvania.