Category Archives: Sexual Orientation Discrimination

Gay Male Proceeds with Constructive Discharge Claim Based on Sexually Hostile Work Environment

Title VII, the federal discrimination law that protects employment discrimination in Pennsylvania based on race, national origin, religion and sex does not explicitly provide protection on the basis of sexual orientation. Nevertheless, federal courts have found that the law can be interpreted to protect gay employees under certain circumstances. In EEOC v. Scott Medical Center (W. D Pa. November 4, 2016) (Bisson, J.), the court held that Title VII protects a Pennsylvania employee who is subject to discrimination on the basis of sexual orientation, as the law protects “discrimination because sex.”

In Scott Medical Center, a gay male Pennsylvania employee worked in a telemarketing position. The employee alleged that he was subject to discriminatory behavior by the employer’s telemarking manager and that he was constructively discharged by the employer, due to an allegedly sexually hostile work environment perpetrated by the employer’s telemarking manager. The employee alleged that the employer manager’s discriminatory behavior subjected him to a continuing course of unwelcome and offensive harassment because of his sex and that the harassment was of sufficient severity and/or pervasiveness to create a hostile work environment because of the employee’s sex. In effect, the male employee was targeted because he did not conform to what the manager believed was acceptable or expected behavior for a male because of his association with members of the same sex, rather than the opposite sex, and the harassment created a work environment that was both subjectively and objectively hostile and intolerable because of sex.

The workplace behavior at issue included routine unwelcome and offensive comments by the manager, including regularly calling the employee fag, faggot and queer; and making statements such as “f-ing” queer can’t do your job. These harassing comments were being made at least three to four times a week. Additionally, upon learning that the employee was gay and had a male partner, the employee’s manager made highly offensive statements to the employee about the employee’s relationship such as saying, I always wondered how you fags have sex, I don’t understand how you f-ing fags have sex and who’s the butch and who is the bitch? The male employee complained about the manager’s conduct directly to the President/Chief Executive Officer of the employer, who shrugged it off and took no action at all to stop the harassment, which continued. The employer’s failure to engage in prompt and effective action in response to the ongoing harassment resulted in the male employee’s constructive discharge of employment when he quit.

Ironically, the situation involving the gay male employee first came to the EEOC’s attention as part of an investigation of charges of discrimination brought by five of the same manager’s former female co-workers, who alleged they had been subjected to discrimination because of sex based on sexual harassment and unwanted touching so frequently and severely that it created a hostile and offensive work environment and resulted in adverse employment decisions.

In Scott Medical Center, the court noted that the Supreme Court has consistently applied a broad interpretation of the “because of sex” language in Title VII and in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 82 (1998), the Supreme Court held that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The court noted that “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality” and the court endorsed the EEOC’s statement that discriminating against a person because of the sex of that person’s romantic partner necessarily involves stereotypes about ‘proper’ roles in sexual relationships – that men are and should only be sexually attracted to women, not men.” The court also noted that the Supreme Court’s recent opinion legalizing gay marriage demonstrates a growing recognition of the illegality of discrimination on the basis of sexual orientation and noted that “someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate. Thus, the Court concluded that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination “because of sex.”

Andrew Abramson and Abramson Employment Law represent Pennsylvania employees who are subject to discrimination and sexual harassment at the workplace. For more information see our website at http://www.job-discrimination.com/

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Filed under Employment DIscrimination, Employment Law, Sex / Gender Discrimination, Sexual Harassment, Sexual Orientation Discrimination

Sexual Harassment & Gender Discrimination: Failing to Conform to Gender Stereotypes Recognized as Viable Claim for Openly Gay Employee

While there are efforts before Congress to provide protection under federal law for employment discrimination based on sexual orientation, presently federal law does not explicitly provide protection for adverse employment decisions based on sexual orientation. However, a recent case, Roadcloud v. City of Phila., 2014 U.S. Dist. LEXIS 769 (E.D. Pa. January 6, 2014) (Tucker, J.), demonstrates that exiting federal law can provide certain protection in a sexual orientation context when the factual basis of an employee’s claim supports a finding that an employee fails to conform to gender stereotypes.

In Roadcloud, an openly gay female sergeant employed by the Philadelphia Prison System filed causes of action for discrimination on the basis of her gender, sexually harassment and creating a hostile work environment, alleging that she began to receive harassing comments from her supervisor which focused on plaintiff’s perceived lack of femininity, outward signs plaintiff had engaged in sexual contact, and plaintiff’s sexual orientation. The employee also outlined incidents which included the supervisor claiming that he noticed plaintiff had signs of recent sexual activity in the form of disheveled hair and a “passion mark” which the supervisor shared with plaintiff’s supervisors and co-workers; the supervisor indicated to plaintiff he was dissatisfied with a staffing decision and at the same time told the plaintiff that he was aware of plaintiff’s sexual preferences in a threatening manner. The Plaintiff then made a formal written complaint for which no action was taken; and then received a negative performance review; and eventually, a transfer to a less desirable prison facility.

In considering sexual harassment/hostile work environment claims, the court noted that a plaintiff employee must show (1) the discrimination was intentional and because of the plaintiff’s sex; (2) the discrimination against plaintiff was severe or pervasive; (3) the discrimination had a subjective detrimental effect on the plaintiff; (4) the discrimination was objectively detrimental; and (5) respondeat superior liability (the employer is responsible for the acts of the harassing employee). In so doing, a court must consider the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. While federal law does not consider sexual orientation a protected class, discrimination on the basis of a plaintiff’s failure to conform to expected gender stereotypes is discrimination on the basis of sex, which means that if a plaintiff employee can show that either the harasser was motivated by sexual desire, expressed a general hostility to the presence of one sex in the workplace, or acted to punish noncompliance with gender stereotypes, a claim is viable.

In Roadcloud, the court concluded that the Plaintiff employee sufficiently alleged discrimination against her on the basis of her failure to conform to expected gender stereotypes (i.e. a belief that women should not be aggressive), and the supervisor acted on the basis of gender because Plaintiff alleged the supervisor’s harassment focused on plaintiff’s appearance, specifically the signs of sexual conduct he believed plaintiff exhibited but he did not make similar comments about women that conformed to the supervisor’s expectations of a female. The court also found that the conduct was severe or pervasive because the Complaint demonstrates that for a period in excess of one year, the Plaintiff was harassed by the supervisor, which the court found alleges “complex tapestry” of actions by the employer sufficient to plausibly allege severe or pervasive discrimination.

The court also found that the employee has a separate viable gender discrimination claim because: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances of the adverse employment action could give rise to an inference of intentional discrimination. In so doing, the court found that Plaintiff alleged two adverse employment actions, her negative performance evaluations and a transfer to a different facility with poorer conditions, fewer responsibilities, and less hours.

For more information on sex discrimination, sexual orientation discrimination and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-2130157.html, http://www.job-discrimination.com/lawyer-attorney-2130165.html

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Filed under Retaliation, Sex / Gender Discrimination, Sexual Harassment, Sexual Orientation Discrimination