EEOC asserts jurisdiction over anti-gay harassment claim

by on July 11, 2011  •  In Employment law

In Veretto v. Donohue, 2011 WL 2663401, the Office of Federal Operations (OFO) of the EEOC reinstated a discrimination complaint filed by a gay male employee of the Postal Service who works in Connecticut. Veretto alleged that a co-worker ("CW1") harassed him after reading in a local newspaper that Veretto was about to marry his partner, and alleged that had he been a woman engaged to marry a man, the harassment would not have occurred.

The Postal Service ("the Agency") dismissed the complaint on the ground that sexual orientation discrimination is not prohibited by Title VII. OFO reversed the dismissal, ruling that the EEOC has jurisdiction under a sexual stereotyping theory to investigate whether the claim has merit.

The key text in the opinion states:

The Agency is correct that the Title VII's prohibition of discrimination does not include sexual preference or orientation as a basis. [citations omitted]

Title VII does, however, prohibit sex stereotyping discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (finding that an employer's decision to withdraw a job offer from a transsexual applicant constituted sex stereotyping discrimination in violation of Title VII)… In Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997), the Commission made clear that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant can prove no set of facts in support of the claim which would entitle the complainant to relief. In this case, we find that Complainant has alleged a plausible sex stereotyping case which would entitle him to relief under Title VII if he were to prevail. He alleges that he was subjected to a hostile work environment because CW1 learned that he was marrying a man. He has essentially argued that CW1 was motivated by the sexual stereotype that marrying a woman is an essential part of being a man, and became enraged when Complainant did not adhere to this stereotype by announcing his marriage to a man in the society pages of the local newspaper. In other words, Complainant alleges that CW1's actions were motivated by his attitudes about stereotypical gender roles in marriage. Complainant further alleges that the Agency should be held liable for CW1's actions because it failed to take appropriate corrective action once the harassment was reported to management. These allegations are sufficient to state a viable hostile work environment claim under Title VII. 

This decision illustrates that, although no court has found that sexual orientation discrimination is covered under sex discrimination, a gay person who is subjected to harassment or other sexual stereotyping is as entitled as anyone else to bring a claim under Title VII.


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