EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 29 that Title VII prohibits discrimination against gay or transgender employees as a form of sex discrimination. 195 The 6-3 decision authored by Justice Gorsuch was a significant victory for the EEOC. In its opinion, the Supreme Court held that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. ” 196 Further, it noted that although “[t]hose who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result . . . the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” 197 After noting that “[f]ew facts are needed to appreciate the legal question we face,” the Supreme Court explained that, “[e]ach of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender – and allegedly for no reason other than the employee’s homosexuality or transgender status. ” 198 The Supreme Court reasoned that because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. The EEOC has been diligently pursuing this theory of discrimination in the courts for several years, resulting in quite a few victories in line with the Bostock decision. Employers should expect that the EEOC will be even more vigilant in enforcing this new federal workplace protection for the foreseeable future. The implications of how this decision will impact the American workforce will have to wait for future developments as Bostock is interpreted and applied in courts across the country. For example, in Roberts v. Glenn Industrial Group, Inc. , 199 the EEOC appeared as amicus curiae in a case brought by an employee who alleged, among other things, that he had been subjected to same-sex sexual harassment by his supervisor. The alleged sexual harassment involved calling the charging party “gay,” among many other allegations. The district court had denied his claim, holding that he had not established one of the three situations that would support a claim of same-sex sexual harassment identified in Oncale v. Sundowner Offshore Services , 200 In Oncale , the Supreme Court had held that Title VII does not bar claims of discrimination merely because the harasser and the victim are of the same sex . 201 The Supreme Court held that a victim of same-sex harassment can prove his or her claim: “(1) when there is ‘credible evidence that the harasser is homosexual’ and the harassing conduct involves ‘explicit or implicit proposals of sexual activity;’ (2) when the ‘sex-specific and derogatory terms’ of the harassment indicate ‘general hostility to the presence of the victim's sex in the workplace’; and (3) when comparative evidence shows that the harasser treated members of one sex worse than members of the other sex in a ‘mixed-sex workplace.’” 202 The District Court had held that the second and third situations did not apply because there was no evidence that the charging party’s supervisor was motivated by a general hostility towards men in the workplace and because it was not a mixed-sex workplace (it was only men). 203 And the first situation did not apply because there was no evidence that the harasser was homosexual. 204 The Fourth Circuit held that the District Court had erred in interpreting Oncale as setting forth an exclusive list of situations of actionable same-sex sexual harassment. According to the Fourth Circuit, this was not even the situation of Oncale , since in that case, the victim’s claim did not fall under any of the three identified situations. 205 The court concluded: “we reject [defendant’s] arguments that [charging party’s] claim is limited to the evidentiary routes described in Oncale , and that [charging party] cannot show that 195 Bostock v. Clayton County, Ga. , 140 S. Ct. 1731 (2020). 196 Id . at 1737. 197 Id. 198 Id. 199 Roberts v. Glenn Industrial Group, Inc. , No. 19-1215, 2021 WL 2021812 (4th Cir. May 24, 2021). 200 Oncale v. Sundowner Offshore Services , 523 U.S. 75 (1998). 201 Roberts , 2021 WL 2021812, at *4. 202 Id. (quoting Oncale , 523 U.S. at 80-81). 203 Id. 204 Id. 205 Id.