PR&LA Winter 2018

22  • PENNSYLVANIA RESTAURANT & LODGING matters • Winter 2018 LEGAL DOCKET The Attorney ask The EEOC’s Latest Position Regarding Title VII J. Steven Lovejoy, Esquire SHUMAKER WILLIAMS, P.C. General Counsel, Pennsylvania Restaurant & Lodging Association J. Steven Lovejoy, Esquire ON NOVEMBER 4, 2016, the United States District Court for the Western District of Pennsylvania denied a motion to dismiss one of the first sex discrimination lawsuits based on sexual orientation filed by the U.S. Equal Opportunity Commission (EEOC). In U.S. Equal Emp’t Opportunity Comm’n v. Scott Med. Health Ctr., P.C., the EEOC brought the action on behalf of a gay male employee who was routinely harassed by his supervisor, ultimately resulting in a constructive discharge. 217 F. Supp. 3d 834 (W.D. Pa. 2016). The court viewed the EEOC’s argument as one basic question, but for the employee’s sex, would he have been subjected to the discrimination and harassment? The court held that sexual orientation discrimination is a form of sex discrimination that is prohibited by Title VII of the Civil Rights Act of 1964. Rather than arguing that discrimination against a homosexual is a form of gender bias prohibited by Title VII, as was the case in some of the previous cases dealing with a similar issue, the EEOC argued under a stereotyping theory. “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality,” the court stated. On November 16, 2017, the court issued a decision on the issue of damages. The court ordered Scott Medical to pay the maximum statutory amount of $50,000 as compensatory and punitive damages along with $5,500.43 in back pay and prejudgment interest. U.S. District Judge Bissoon opined that a greater damages award would be consistent with other comparable cases where emotional distress was found; however due to the statutory cap, the court was unable to award damages in excess of $50,000. The court further stated that evidence of the company’s lack of good faith efforts to comply with Title VII would have warranted an additional $75,000 in punitive damages but for the statutory cap. The court stated that the employer failed to train the harassing supervisor on the company’s anti-harassment policy and intentionally permitted the harassment to persist. The employee testified that he was never informed of the contents of the company’s anti-harassment policy, never received a copy of the policy, and was never trained on workplace harassment. The court also held that an injunction was warranted because individuals involved in the unlawful conduct remained in positions of authority in the company and there was no evidence that the company took steps to prevent future violations such as subsequent training, company policies, or programs. Now that a judgment has been entered in this case, the employer may appeal the decision to the Third Circuit Court of Appeals. In the case of an appeal, the Third Circuit will be required to reconsider previous decisions in which it held that discrimination based on sexual orientation was not protected under Title VII. Federal appellate courts that have heard similar cases regarding the stereotyping issue have held that Title VII does not apply to homosexual workers, but that is starting to change. On April 4, 2017, after granting en banc review, the Seventh Circuit Court of Appeals held in Hively v. Ivy Tech Cmty. Coll. of Indiana, that a person who alleged that she experienced employment discrimination on the basis of her sexual orientation stated a case of sex discrimination under Title VII. 853 F.3d 339 (7th Cir. 2017). This decision overruled several prior Seventh Circuit decisions. The final judgment in Scott Medical Health Center, P.C. highlights the importance of company anti-harassment policies and training. Additionally, companies should update their anti-harassment policies considering this decision and the expected future trend. Employers without policies in place to prohibit sex discrimination based on sexual orientation should consider revising company policies to address this situation. Effective training and policies are essential to preventing workplace harassment. • Meanwhile, if you have any questions concerning this or other legal issues, please contact Keith A. Clark, Esquire (717.909.1612 or kclark@ shumakerwilliams.com ) at Shumaker Williams, P.C., PRLA’s General Counsel.