digitalcommons.nyls.edu Faculty Scholarship Other Publications 2016 EEOC Win Shows What Trump Era Might Undo Arthur S. Leonard New York Law School, [email protected] Follow this and additional works at: http://digitalcommons.nyls.edu/fac_other_pubs Part of the Civil Rights and Discrimination Commons, and the Sexuality and the Law Commons Recommended Citation Gay City News, v. 15, no. 24, November 24-December 7, 2016 This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Other Publications by an authorized administrator of DigitalCommons@NYLS. POST-11/8 LGBT AMERICA EEOC Win Shows What Trump Era Might Undo Obama push to broaden existing sex discrimination laws to protect LGBT Americans is at risk BY AUTHUR S. LEONARD This was the first lawsuit that the EEOC filed on behalf of a gay former employee alleg- November 4 ruling in a sexual ing his discharge was “because of sex” in vio- orientation discrimination case lation of Title VII. In July 2015, reversing a brought by the Equal Employment position it held for half a century, the agency Opportunity Commission (EEOC) ruled that the US Transportation Department Ashows how progress on LGBT rights may may have violated Title VII when it denied a be lost in the wake of the election of Donald promotion to a gay air traffic controller. After Trump and Mike Pence. embracing the view that sexual orientation US District Judge Cathy Bissoon, nominat- claims can be asserted under Title VII, the ed to the federal district court in Pittsburgh EEOC was on the lookout for appropriate pri- by President Barack Obama in 2010 and con- vate sector cases to bring — both in order to firmed by the Senate in an 82-3 vote the fol- vindicate a public policy against such discrim- lowing year — and a Brooklyn native who ination and to win a remedy for the employee is first woman of Indian descent to sit on the involved. Its goal was to establish court prec- federal bench — held that Title VII of the 1964 edents that would lock its interpretation into EEOC Civil Rights Act may be used to protect gay the case law. Prior to the Baxley case, all of people from sexual orientation discrimination. Chai Feldblum, an out lesbian EEOC commissioner appointed the Title VII sexual orientation claims brought Dale Baxley, hired in mid-July 2013 by by President Obama, has done much to advance the agency’s to federal courts were lawsuits filed by dis- proactive posture on LGBT nondiscrimination policy. Scott Medical Health Center in a telemarketing crimination victims themselves, not by the position, claims he was subjected to a hostile federal agency. work environment as the result of his manag- Scott Medical sought to have the EEOC er Robert McClendon’s “continuing course of complaint dismissed, arguing that Title VII unwelcome and offensive harassment because does not prohibit discrimination based on of his sex.” According to the complaint filed in sexual orientation, citing two precedents from the case, McClendon “routinely made unwel- the Third Circuit Court of Appeals, which has come and offensive comments about Baxley, jurisdiction over the federal district court in including but not limited to regularly calling Pittsburgh. Bissoon found that in those prior him ‘fag,’ ‘faggot,’ ‘fucking faggot,’ and ‘queer,’ “There is no more obvious decisions the Third Circuit had not been pre- and making statements such as ‘fucking queer form of sex stereotyping sented with all the arguments the EEOC has can’t do your job.’” The complaint also alleges than making a determination that developed since 2015 and that more recent that McClendon “made highly offensive state- events have undermined their conclusions, so ments to Baxley about Baxley’s relationship a person should conform she found that those rulings did not compel with [his] partner such as saying, ‘I always to heterosexuality.” her dismiss the complaint. wondered how you fags have sex,’ ‘I don’t The EEOC advanced three arguments in understand how you fucking fags have sex,’ support of its position. First, that Baxley was and ‘Who’s the butch and who is the bitch?’” “targeted because he is a male, for had he been Baxley was gone from the job after about a female instead of a male, he would not have month of McClendon’s verbal abuse, a victim, been subjected to discrimination for his inti- he claims, of “constructive discharge” — mean- mate relationships with men.” Second, that ing his working conditions were so miserable he was “targeted and harassed because of his he was compelled to quit. intimate association with someone of the same The EEOC entered this case not based on McClendon harassed a male employee because sex, which necessarily takes Baxley’s sex into a charge Baxley filed but from the agency’s of sex, specifically and repeatedly referring to account.” And, third, that he was “targeted investigation of separate discrimination claims the male employee as a ‘faggot,’ and repeatedly because he did not conform to his harasser’s filed with its Pittsburgh office by five of Bax- asking about the employee’s sexual experienc- concepts of what a man should be or do.” ley’s former female co-workers. These women es and preferences. The investigation revealed This last argument is a version of the “sex alleged that they were also subjected to sex- that McClendon targeted this male employee stereotype” theory that the Supreme Court ual harassment by McClendon, including because he did not conform to what McClen- approved in 1989 in Price Waterhouse v. Hop- “unwanted touching so frequently and severe- don believed was acceptable or expected kins, a case where a woman was able to sus- ly that it created a hostile and offensive work behavior for a male because of his association tain a sex discrimination claim because she environment and resulted in adverse employ- with members of the same sex rather than the was denied a partnership based on the con- ment decisions being taken against them.” In opposite sex.” clusion by the firm’s partners that she was the course of this inquiry, the EEOC learned That letter spelled out the conclusion that not sufficiently feminine in her appearance about McClendon’s treatment of Baxley and McClendon’s conduct created a hostile envi- and demeanor. Baxley’s claim that he had been constructively ronment resulting in the constructive dis- Bissoon said that the EEOC’s three argu- discharged. charge of Baxley. After trying unsuccessfully ments were actually just one argument stat- The agency informed Scott Medical Health to achieve a conciliation agreement with Scott Center that its investigation “also revealed that Medical, the agency filed a lawsuit. c EEOC, continued on p.15 14 November 24 - December 07, 2016 | GayCityNews.nyc c EEOC, from p.14 stereotypes about “proper” roles in sexual relationships — that ed three different ways, “with the men are and should only be sex- singular question being whether, ually attracted to women, not but for Mr. Baxley’s sex, would he men.’ This discriminatory evil is have been subjected to this dis- more than reasonably compara- crimination or harassment. The ble to the evil identified by the answer, based on these allega- Supreme Court in Price Water- tions, is no.” house. Indeed, the Court finds In denying Scott Medical’s discrimination on the basis of motion for dismissal, Bissoon was sexual orientation is, at its very ruling that if the EEOC can prove core, sex stereotyping plain and the factual allegations regarding simple; there is no line separat- the company’s treatment of Bax- ing the two.” ley, it will win the case. Referring to the vast changes Writing that “Title VII’s ‘because in the legal landscape since the of sex’ provision forbids discrimi- Third Circuit earlier ruled on this nation on the basis of sexual ori- question, Bissoon wrote, “The entation,” Bissoon directly contra- Supreme Court’s recent opinion dicted the two prior Third Circuit legalizing gay marriage demon- rulings cited by Scott Medical, but strates a growing recognition of she found that her conclusion was the illegality of discrimination on consistent with the development the basis of sexual orientation. of Title VII law dating back as That someone can be subjected early as 1983 when the Supreme to a barrage of insults, humilia- Court began “broadening” its tion, hostility and/ or changes to interpretation of sex discrimina- the terms and conditions of their tion in a series of cases culminat- employment, based upon nothing ing in the 1989 Price Waterhouse more than the aggressor’s view of decision. She noted that at least what it means to be a man or a one federal appeals court, the Cin- woman, is exactly the evil Title VII cinnati-based Sixth Circuit, has was designed to eradicate.” already used the sex stereotyping Through his appointments, theory to extend protection to a President Obama has moved the transgender plaintiff. Third Circuit from a more con- As the EEOC has done, Bissoon servative to a more progressive quoted the Justice Antonin Sca- bench, but given the current mix lia’s statement in the Supreme of active judges Trump could Court’s 1998 same-sex harass- rebalance it by filling the two ment case, Oncale v. Sundowner vacancies that currently exist and Offshore Services, that “statuto- replacing one more if an Obama ry prohibitions often go beyond or a Bill Clinton appointee takes the principal evil [that Congress senior status. As a result, it’s intended to address] to cover rea- unclear how Bissoon’s ruling sonably comparable evils, and would be received if it ever went it is ultimately the provisions of before the full circuit with all its our laws rather than the princi- active judges sitting en banc.