It was only a matter of time, which has now come to pass. In EEOC v. Scott Med. Health Ctr. (W.D. Pa. Nov. 4, 2016), trial judge Cathy Bissoon determined that the EEOC may pursue a claim that Scott Medical Health Center violated Title VII when it permitted a supervisor to harass a gay employee because of his sexual orientation to the point the employee felt compelled to resign. When the employer moved to dismiss the case, arguing that legal precedent confirms Title VII’s protections do not include sexual orientation, the trial court disagreed and wrote “there’s no meaningful distinction” between bias based on sexual orientation and discrimination because of sex. In so doing, the court endorsed the EEOC’s position that Title VII’s ban on sex discrimination necessarily includes bias based on a person’s sexual orientation. The trial court was not compelled to follow an earlier Third Circuit case (Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001) holding that Title VII does not cover sexual orientation because the appeals court in that case was not presented with the arguments that the EEOC advanced in this case, and the Supreme Court’s 2015 decision legalizing same-sex marriage in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), demonstrates a growing recognition of the illegality of discrimination based on sexual orientation.
There are three federal appeals courts that will take up this very Title VII issue in the next few months, with the full Seventh Circuit set to hear oral argument in Hively v. Ivy Tech Community College, on November 30, 2016, to reconsider its July 28, 2016 decision holding that Title VII does not cover sexual orientation. There is an Eleventh Circuit case set for December 15, 2016, and a Second Circuit case set for January 5, 2017 (Zarda v. Altitude Express, Inc.).
The legal director of the Human Rights Campaign, an LGBT rights advocacy group, stated this case is “an important part of an overall trend” of courts recognizing LGBT persons are entitled to complete protection of laws prohibiting sex discrimination.
While this is a matter for Congress to address, through an amendment to Title VII, the courts now seem ready and eager to take legislative matters into their own hands.