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March 7, 2016
Important Update for Employers Regarding EEOC and Sexual Discrimination

On Tuesday, March 1, 2016, the Equal Employment Opportunity Commission (EEOC) filed two federal lawsuits against Pallet Companies and Scott Medical Health Center for violating Title VII of the 1964 Civil Rights Act. The lawsuits allege that the companies discriminated on the basis of sex against lesbian, gay, and bisexual (LGB) employees. The EEOC sued these companies on behalf of gay and lesbian employees who allege they were sexually harassed about their sexual orientation by supervisors. The EEOC also alleged that Pallet Companies retaliated against the employee for reporting the sexual harassment.

Title VII of the Civil Rights Act bars most private employers from discriminating against employees on the basis of race, color, religion, sex, and national origin. There is no federal law that expressly prohibits discrimination on the basis of sexual orientation, and only 22 states have such laws. In the absence of federal and state law, these lawsuits show that the EEOC is pursuing a legal strategy within existing civil rights law. In July 2015, the EEOC ruled that Title VII’s ban on sex discrimination also prohibited employers from sexual orientation discrimination. According to that EEOC decision, “sexual orientation is inherently a ‘sex-based consideration” and is subject to Title VII protection.

The lawsuits filed Tuesday are the first time the EEOC has pursued this legal theory in federal court. If the EEOC is successful, LGB employees will be able to bring federal employment discrimination claims in addition to any state remedies available to them. The EEOC’s lawsuits have less of an impact in states, like Minnesota, Wisconsin, and Iowa, that already prohibit employers from discriminating against employees on the basis of sexual orientation. The EEOC’s lawsuits will have the most impact on employers in states without LGB anti-discrimination laws, like North Dakota and South Dakota.

Best & Flanagan’s employment lawyers will continue to monitor developments in this area of the law. Please contact Sarah Crippen, Amy Conners, or Ashleigh Leitch with any questions.

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