Tuesday, November 8, 2016

Fed. Ct.: Sexual Orientation Discrimination is Prohibited Under Title VII

The EEOC scored a victory in one of its recent sexual orientation discrimination cases. The Western District of Pennsylvania denied a motion to dismiss the claim in EEOC v. Scott Medical Health Center (opinion here).

We already knew that gender stereotyping claims could often fit certain fact patterns involving sexual orientation discrimination. The recent WD PA decision is surprising in the breadth of the holding:  
Not official use. 
The Court holds Title VII's "because of sex" provision prohibits discrimination on the basis of sexual orientation . . . . There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality . . . . [T]his Court concludes 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."
But, wait... doesn't that contradict *binding* Third Circuit precedent?  Like, Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001)("It is clear, however, that Title VII does not prohibit discrimination based on sexual orientation."). The Third Circuit approvingly quoted Bibby more recently in Prowell v. Wise Business Forms, Inc. in 2009.

The Court (not very convincingly in my humble opinion) sidesteps that precedent by noting that Bibby did not present "the same arguments or analytical framework as that put forth by the EEOC in this case." The Court then strangely cites district court decisions from outside of the Third Circuit. The Court then notes that one method of statutory interpretation (citing Congress's inaction) has been viewed less favorably in other decisions. The Court then points out that Bibby relied on a lot of case law that pre-dated the SCOTUS gender stereotyping decision in Price Waterhouse (while ignoring that the actual decisions in Bibby and Prowell both *post*-date Price Waterhouse).  And then, to conclude, throws in a reference to Obergefell, the SCOTUS same-sex marriage decision that has nothing whatsoever to do with Title VII.

Because this is not a final order resolving the case, I do not think it can be appealed yet. If the parties continue to litigate and the employer ultimately loses, we could get a reconsideration of Bibby and Prowell at the Third Circuit.