Sexual Orientation Discrimination is “Because of Sex,” Says Pennsylvania Federal Court

Last week, Judge Cathy Bissoon, writing for the U.S. District Court for the Western District of Pennsylvania, denied an employer’s motion to dismiss a case brought by the Equal Employment Opportunity Commission (EEOC) that alleged harassment of a gay employee due to sexual orientation. EEOC v. Scott Medical Health Ctr. (W.D. Pa. 2016).

The employer argued that the case should be dismissed for failing to state a cause of action, since “Title VII does not prohibit discrimination based on sexual orientation.”

Judge Bissoon disagreed, writing that the sole question was, “[B]ut for Mr. Baxley’s sex, would he have been subjected to this discrimination or harassment? The answer, based on these allegations, is no.”

As previously reported, the EEOC has long taken the position that discrimination based on sexual orientation, while not mentioned specifically in Title VII, is nevertheless protected as discrimination “because of sex.” However, despite this decision, the EEOC has been less successful at the appellate level. The issue is ripe for continuing litigation for years to come, and MSEC will continue to follow it closely.