“I Want To Turn You Back Into A Woman”: First EEOC Sexual Orientation Discrimination Case Settled

“The Times They Are A Changin’” I posted last March when the EEOC announced its first employment discrimination lawsuit based upon  sexual orientation – a bold step.

Although Title VII prohibits discrimination based upon sex, as well as a number of other protected classes, it does not explicitly prohibit discrimination based upon sexual orientation.   Congress has doggedly refused to amend Title VII to explicitly include, among other things, sexual orientation, and the courts have ruled consistently that sexual orientation is not a protected class under Title VII.

But the times have changed more rapidly than I would have thought.

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Three months after its filing, the EEOC has announced a blockbuster settlement of the case, for $202,200, even though there is no explicit statute or prior court ruling to support its case – relying virtually on nothing but its own interpretation of Title VII.

The EEOC announced when it filed the case that “Title VII of the Civil Rights Act of 1964 prohibits discrimination because of sex. As the federal law enforcement agency charged with interpreting and enforcing Title VII, EEOC has concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination (emphasis added).”

I wrote then that “[The] 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.”

The EEOC charged that a lesbian employee “was repeatedly harassed by her supervisor because of her sexual orientation. Her supervisor made numerous comments to her regarding her sexual orientation and appearance, such as ‘I want to turn you back into a woman’ and ‘You would look good in a dress’ … [and] also made sexually suggestive gestures to her.”

The company fired her “just days after she complained to management and called the employee hotline to report the harassment.”

And now a settlement.

Said David Lopez, the EEOC’s GC: “This consent decree marks EEOC’s first resolution of a suit challenging discrimination based on sexual orientation under Title VII. EEOC is committed to ensuring that individuals are not subjected to discriminatory treatment in workplaces based on their sexual orientation and looks forward to the day that this fundamental right is widely recognized.”


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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]