Sheba VineIn recent years, the Equal Employment Opportunity Commission (EEOC) has made it a national priority to ensure workplace protections for employees who are lesbian, gay, bisexual, or transgender (LGBT). EEOC’s focus culminated on March 1, 2016, when it filed two landmark cases against private employers alleging unlawful sexual orientation discrimination.
In the wake of these lawsuits, health care providers need to take appropriate internal measures to avoid the legal ramifications these lawsuits will have on employers nationwide.

The Current Legal Landscape

Title VII of the Civil Rights Act of 1964 is the federal law that provides employees protection from discrimination and harassment on the basis of a protected class, which includes race, color, religion, sex, and national origin. Title VII’s protections apply to companies with 15 or more employees.

The definition of sex discrimination under Title VII has evolved over the years. It had initially followed the plain meaning of the law and legislative history to prohibit sexual harassment and discrimination based on an individual’s biological sex.

In 1978, the Pregnancy Discrimination Act amended Title VII to prohibit sex discrimination on the basis of pregnancy, childbirth, and related medical conditions. And in 1989, the U.S. Supreme Court in Price Waterhouse v. Hopkins held that discrimination based on an individual’s perceived nonconformity with gender stereotypes (gender stereotyping) was a form of sex discrimination.

Since this decision, some federal courts have allowed sexual orientation and transgender discrimination claims to proceed under the theory of gender stereotyping. However, Title VII has yet to expressly prohibit discrimination on the basis of sexual orientation.

Although the Employment Non-Discrimination Act bill was introduced in the early 1990s to expressly prohibit sexual orientation discrimination in employment, it has not garnered enough support to pass Congress.

Besides evolving federal law, nearly half of the states have discrimination laws that expressly prohibit sexual orientation discrimination: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin. Some states also prohibit discrimination on the basis of gender identity and/or transgender status.

EEOC’s Position

As the agency charged with enforcing Title VII, among other federal laws, EEOC has adopted a broader view than the federal courts on this matter. On July 15, 2015, in the case of David Baldwin v. Department of Transportation, EEOC ruled that discrimination based on sexual orientation is simply another form of sex discrimination. This decision was issued on the heels of the U.S. Supreme Court Case, Obergefell v. Hodges, which held that the 14th Amendment to the U.S. Constitution guarantees same sex couples the fundamental right to marriage.

Once EEOC made its decision on sexual orientation discrimination, it didn’t waste much time before involving the federal court system. On March 1, 2016, EEOC filed the first two sexual orientation discrimination lawsuits against private employers. In filing these lawsuits, EEOC wants the federal courts to determine if sexual orientation discrimination is a form of sex discrimination; that is, if the parties do not settle out of court beforehand. Depending on the outcome of the following two cases, they may be the first of many lawsuits to come.

In EEOC v. Scott Medical Health Center, P.C., EEOC sued a provider of pain management and weight loss services, alleging that it discriminated against employee Dale Baxley on the basis of sex when it subjected him to harassment because of his sexual orientation and/or because he did not conform to the employer’s gender-based stereotypes.

The lawsuit alleges that Baxley’s immediate supervisor knew that Baxley was gay and frequently assailed him with highly offensive anti-gay epithets and other vulgar epithets based on sex stereotypes. Although Baxley complained about the harassment to the medical director, no corrective action was taken, allowing the harassment to continue until Baxley was forced to resign.

In EEOC v. IFCO Systems NA Inc., EEOC sued a provider of reusable plastic containers, alleging that it discriminated against employee Yolanda Boone on the basis of sex by terminating her for complaining about harassment.

According to the lawsuit, Boone’s supervisor harassed her repeatedly because of her status as a lesbian woman, which included making sexually suggestive gestures. EEOC alleges that once Boone complained about the discrimination, the provider terminated her, which constituted unlawful retaliation.

Updating Policy, Training Employees

In light of the changing legal landscape of Title VII and recent lawsuits, health care providers need to evaluate internal antidiscrimination policies and practices in mitigating legal risk. This is true even if the provider is not in a state that recognizes discrimination based on sexual orientation.

To this end, providers that are covered by EEOC laws (15 or more employees) should revise their antidiscrimination policies to incorporate prohibitions against discrimination and harassment based on sexual orientation, transgender status, and gender identity. Any policy revisions should be circulated to employees, and training should be implemented to ensure employees understand their rights and responsibilities under such internal policies.

Providers should take all complaints of discrimination/harassment seriously and respond appropriately, by determining whether there was a policy violation and if corrective action is necessary.

Disciplinary measures should be consistently applied to avoid further claims of discrimination. Moreover, providers should always base employment decisions on legitimate, nondiscriminatory reasons.

Taking these steps to ensure zero tolerance for discrimination will help ensure a healthy work culture and avoid costly employment litigation battles.
Sheba E. Vine, Esq., CPCO, is the senior director of regulatory compliance at First Healthcare Compliance (www.1sthcc.com), a company that offers a comprehensive “turnkey” compliance program management solution to health care providers and others involved in managing health care compliance. Vine has practiced as a litigation and employment attorney. She can be reached at shebavine@1shcc.com.