Federal judge sides with EEOC on sexual orientation discrimination

Federal District Judge Cathy Bissoon. Official photo.

by Rob Howard
Associate Editor

Warning: This article contains language that may be considered offensive by some.

The U.S. Equal Employment Opportunity Commission (EEOC) determined last year that sexual orientation discrimination is sex discrimination under Title VII of the Civil Rights Act of 1964. Now, a Federal District Judge in Pittsburgh, PA, has sided with the EEOC in a case that the Commission brought on behalf of Dale Baxley, who is gay and was harassed by his manager at Scott Medical Health Center of Pittsburgh.

In her ruling, Judge Cathy Bissoon wrote, ““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.”

In the background section of the ruling, Judge Bissoon detailed the behavior of Baxley’s manager, Robert McClendon. “Specifically, the Complaint alleges Mr. McClendon “routinely made unwelcome and offensive comments about [Mr.] Baxley, including but not limited to regularly calling him ‘fag,’ ‘faggot,’ ‘fucking faggot,’ and ‘queer,’ and making statements such as ‘fucking queer can’t do your job.’” Plaintiff alleges these type of harassing comments were made “at least three to four times a week.” Id. Additionally, according to the allegations in the Complaint, “upon learning that [Mr.] Baxley is gay and had a male partner ..., [Mr.] McClendon made highly offensive statements to [Mr.] Baxley about [Mr.] Baxley’s relationship with the partner such as saying, ‘I always wondered how you fags have sex,’ ‘I don’t understand how you fucking fags have sex,’ and ‘Who’s the butch and who is the bitch?’”

The judge responded to those actions in her decision, saying, “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. As the EEOC states, ‘[d]iscriminating 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 Medical Center had asserted that Title VII could not be extended to prohibit discrimination due to sexual orientation, but Judge Bissoon thoroughly demolished that position in her ruling.

The Human Rights Campaign (HRC) praised the judge’s decision in its blog, saying, “’This is an important win for LGBTQ equality,’ said HRC Legal Director Sarah Warbelow. ‘Judge Bissoon’s decision affirms that discrimination against an individual based on their sexual orientation is fundamentally a form of discrimination based on sex -- which is prohibited by federal law. We congratulate the EEOC and the plaintiff on this victory.’

“This new decision continues an important trend in the development of case law. The Supreme Court has not yet ruled on this issue. HRC continues to advocate for permanent and explicit legislation addressing discrimination on the basis of sexual orientation and gender identity.”

The EEOC determined in 2012 that gender identity discrimination is sex discrimination.

Copyright 2016 The Gayly – November 7, 2016 @ 11:40 a.m.