Same Sex Workplace Harassment Violates Title VII

This latest EEOC lawsuit is a reminder that workplace sexual harassment can be same sex harassment – without having to involve the legal issue, still unsettled and controversial, of whether sexual orientation is covered by Title VII.

This case was filed against three related Hawaii tour companies.  It is alleged that the company president “engaged in a pattern of sexually harassing young males … which spanned more than a decade, included inviting males to join in sex parties with him; show­ing them pornographic videos and photos; requiring them to show him their private parts in order to be considered for employment; making employment opportunities contingent upon engaging in sexual acts with him; and performing unwanted sexual acts on male employees.”

The local EEOC director said that “Harassment is alleged in 31% of all charges filed with the EEOC.”  And an LA EEOC regional attorney said that “All employees, regardless of gender, have the right to work in a harassment-free workplace and should never be forced to endure such abuse.”

Title VII And Sexual Orientation

This case, about same sex harassment, must be distinguished from sexual orientation harassment.

Title VII does not explicitly protect employees from discrimination and harassment based on gender identity and sexual orientation. But the EEOC has, for a couple of years, pursued the argument that gender identity and sexual orientation are discrimination on the basis of sex – a protected class.

In July 2015, the EEOC issued a decision, binding on federal agencies (though not federal courts), that claims for sexual orientation discrimination are cognizable under Title VII.  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.”

I posted a while ago that the EEOC settled the first employment case involving sexual orientation discrimination.  The EEOC brought the case, relying on the only authority that it could marshal — its own interpretation of Title VII, albeit applicable only to federal agencies.  It never got to court so there was no ruling on sexual orientation.

And no court has yet agreed with the EEOC’s position that “sex discrimination” prohibited by Title VII includes “sexual orientation,” but one or two may be poised to – the Courts of Appeal in Chicago and New York, both of which heard oral argument on the issue recently.

Takeaway:  The EEOC”s Strategic Enforcement Plan (SEP) states that “Preventing workplace harassment through systemic litigation and investigation is one of the six national priorities.”  The EEOC has also, in the last number of years, pursued harassment based on gender identity and sexual orientation as a priority.

Neither of these may be the case much longer as the EEOC changes political leadership.



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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]