November 5, 2016 at 12:41 pm EDT | by Chris Johnson
Another court rules anti-gay bias barred under current law
 A federal judge has determined anti-gay discrimination is barred under current law.

A federal judge has determined anti-gay bias is barred under current law.

A federal court in Pennsylvania has become the latest to determine discrimination against gay people in the workplace is barred under current law, despite the lack of explicit protections in U.S. code based on sexual orientation.

In a 14-page decision announced on Friday, U.S. District Judge Cathy Bissoon, an Obama appointee, rejected a request to dismiss a case filed by the U.S. Equal Employment Opportunity Commission on behalf of Dale Baxley, a former telemarketer at the Pittsburgh-based Scott Medical Health Center who says he was harassed on the job for being gay and forced to resign.

Bissoon cites as the reason to allow the case to go forward Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of gender, becoming the latest in a series of court rulings to determine that law applies to lesbian, gay and bisexual people.

“The Court holds Title VII’s ‘because of sex’ provision prohibits discrimination on the basis of sexual orientation,” Bissoon writes. “Accordingly, the EEOC’s Complaint stating that Mr. Baxley was discriminated against for being gay properly states a claim for relief. The Court sees no meaningful difference between sexual orientation discrimination and discrimination ‘because of sex.'”

According to the complaint filed by EEOC, when Baxley worked at Scott Medical Health Center in 2013, his supervisor, Robert McClendon, referred to him at least three to four times a week with anti-gay epithets, calling him “fag,” “faggot,” “fucking faggot” and “queer.” EEOC also alleges McClendon made statements like “fucking queer can’t do your job.”

Upon learning Baxley had a male partner, McClendon allegedly made offensive statements to him about the relationship, 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?” In August 2013, Baxley resigned as a result of the harassment.

EEOC, the U.S. agency charged with enforcing federal employment civil rights law, filed a lawsuit after an effort to reach a conciliation agreement with Scott Medical Health Center failed. Last year, EEOC determined in the case of Baldwin v. Foxx that sexual orientation discrimination is gender discrimination, and thus lesbian, gay and bisexual workers are protected under Title VII. EEOC reached the same conclusion in 2012 for transgender workers in the case of Macy v. Holder.

Attorneys for Scott Medical Health Center urged the court to dismiss the lawsuit based on a number of claims, arguing EEOC didn’t follow proper process in filing the complaint and filed the claim too late, but the court rejected each of those claims.

Scott Medical Health Center also contends EEOC lacks grounds to file the complaint because Title VII doesn’t bar discrimination based on sexual orientation, citing as precedent in the Third Circuit for that legal determination Prowel v. Wise Business Forms, Inc., and Bibby v. Philadelphia Coca-Cola Bottling, Co.

Finding those cases aren’t dispositive, Bissoon gets around that precedent by noting EEOC filed its claim on the basis that sexual orientation discrimination is a form of gender discrimination. Bissoon also cites the 1989 U.S. Supreme Court decision in the Price Waterhouse case, which determined sex stereotyping amounts to gender discrimination.

“There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality,” Bissoon writes. “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.’ This discriminatory evil is more than reasonably comparable to the evil identified by the Supreme Court in Price Waterhouse. Indeed, the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two.”

Bissoon also cites a changing legal landscape with regard to court rulings on sexual orientation, citing the recent U.S. Supreme Court decision extending same-sex marriage nationwide.

“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,” Bissoon concludes.

Sarah Warbelow, legal director for the Human Rights Campaign, called Bissoon’s determination anti-gay employment discrimination is barred under current law an “important win for LGBTQ equality.”

“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,” Warbelow added. “We congratulate the EEOC and the plaintiff on this victory.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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