EEOC Continues To File Sexual Orientation Suits

Just yesterday we discussed the oral argument conducted last week before the federal court of appeals in NYC which revolved around the question of whether Title VII covers sexual orientation – the EEOC’s position.  I asked whether “[w]ith the country poised, perhaps, to return to the (imagined) good ‘ol ’50’s, will the courts rule that Title VII includes sexual orientation?”

As if to underscore its position, and ensure that sexual orientation becomes firmly seen as part of the fabric of Title VII’s prohibition against sex discrimination, the EEOC just announced a new hostile work environment lawsuit based upon sexual orientation harassment filed against an Arizona wine bar and restaurant.

The EEOC alleges that the company “allowed its management and line staff to harass two male servers based on their actual and perceived sexual orientation. … egregious name calling, comments, innuendos and touching. Although the two employees complained to their supervisors, the supervisors did nothing about the conduct, and, in some instances, actually participated in the harassment … When one of the employees mentioned that he planned on taking legal action … the company fired him.”

The EEOC’s press release stated that this suit was part of its Strategic Enforcement Plan a/k/a/ “SEP” to “[p]rotect[…] lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex.”

An EEOC attorney noted that “Federal law protects against all forms of discrimination based on sex.  Employers cannot allow harassment based on sexual orientation, whether actual or perceived.”

As I said yesterday, no court has yet agreed with the EEOC’s position that “sex discrimination” in Title VII includes “sexual orientation,” but one or two may be poised to.


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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]