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  Fact Sheet: Notable EEOC Litigation Regarding Title VII & Discrimination Based on Sexual Orientation and Gender Identity

                      
                        

          
          
                        Fact Sheet:  Notable EEOC Litigation Regarding Title VII & Discrimination Based on Sexual Orientation and Gender Identity
              


          
  Overview

EEOC litigators have filed lawsuits and amicus curiae briefs in various courts addressing a multitude of issues related to workplace discrimination based on sexual orientation and gender identity. Some of these include:

Litigation

*Resolved Cases***

**EEOC v. Amma Investment Group, LLC, and Maryland Health Management, LLC d/b/a Nature’s Medicine** (D. Md., No. 1:20-cv-02786, filed Sept. 24, 2020, resolved Dec. 21, 2020)

EEOC filed this lawsuit alleging that Nature’s Medicine, a retail distributor of medical cannabis products, and Amma Investment Group, a provider of HR and payroll functions, subjected the male Charging Party and female employees to a hostile work environment based on sex. The claimants worked as patient services providers, stocking displays, assisting customers, and ringing up sales. Their supervisor, the store’s male general manager (GM), was aware that Charging Party was gay and subjected Charging Party and female employees to unwelcome touching, sexually explicit comments, and nude cell phone pictures. Between 2018 and 2019, employees complained to company officials about the GM’s sexually offensive conduct, but the conduct continued. The GM was terminated in October 2019, a year after the first complaints and only after defendants received notice of the charge of discrimination. The 3-year consent decree provides for $175,000 in compensatory damages ($45,000 to Charging Party and $130,000 to five other claimants) and enjoins sex-based harassment and retaliation. Defendants were required to implement an antidiscrimination policy focusing on sex-based harassment and will provide trainings on sex-based harassment.

**EEOC v. R.G. & G.R. Harris Funeral Homes****,****Inc.** (E.D. Mich., No. 2:14-cv-13710, filed Sept. 25, 2014, resolved Nov. 30, 2020)

EEOC filed this lawsuit alleging that defendant, a Detroit-based funeral home company, discharged Charging Party because of her gender identity, and failed to provide female public contact employees a clothing allowance provided to male public contact employees. Charging Party was hired in 2007 as a funeral director/embalmer. In 2013, two weeks after Charging Party informed defendant she was transitioning from male to female and intended to dress as a female at work, defendant’s owner told her that was unacceptable and discharged her. The Commission filed suit in 2014, and in March 2018, the Sixth Circuit ruled that Title VII’s sex discrimination provision protected transgender individuals, and that Charging Party was unlawfully fired. In June 2020, the Supreme Court affirmed. The 3-year consent decree provides for $130,000 in trust to Charging Party’s estate, and $120,000 to the ACLU as representative of Charging Party’s estate, which intervened. The decree also provides a total of $3,705 for clothing allowances denied to female front-facing employees. The decree enjoins firing employees based on transgender status and providing employees with unequal clothing benefits based on sex. Defendant issued policies against sex discrimination, including based on transgender status, and was required to provide all employees with training on sex discrimination, including transgender discrimination and sex-based stereotyping.

**EEOC v. Mejia****Corporation****d/b/a****El Tio Gainesville** (E.D. Va., No. 1:18-cv-01226, filed Sept. 26, 2018, resolved Aug. 8, 2019)

EEOC filed this lawsuit alleging that defendant, a Tex-Mex restaurant in Gainesville, Virginia, subjected Charging Party to harassment based on his sexual orientation and that two coworkers were subjected to a hostile work environment based on their association with Charging Party. Charging Party is openly gay. He began working for defendant as a server in 2013 and coworkers immediately subjected him to physical threats, anti-gay epithets and slurs, disparaging remarks, bullying and taunting, and ridicule of his mannerisms, demeanor, and appearance. The harassment was exacerbated by knowledge that Charging Party participated in several drag shows at the restaurant, dressed as a woman. The owner and the general manager of the restaurant participated in the harassment. Charging Party repeatedly complained about the harassment, but it continued. Two of Charging Party’s coworkers were subjected to similar comments because they defended or were friendly with Charging Party. The 3-year consent decree provides $40,000 to Charging Party and one claimant and enjoins sex-based harassment and retaliation. Defendant was required to maintain policies against discrimination in English and Spanish emphasizing sex harassment and to provide training on harassment based on sexual orientation.

**EEOC v. A&E Tire, Inc.** (D. Colo., No. 1:17-cv-02362, filed Sept. 29, 2017, resolved April 5, 2019)

EEOC filed this lawsuit alleging that defendant, the operator of five auto repair stores in Colorado, did not hire Charging Party because of her gender identity. In May 2014, Charging Party applied for a service manager position with defendant. Charging Party was required to complete a screening consent form that included a sex designation. Although Charging Party presented as male at his interview, she checked “female” on the form. The manager telephoned Charging Party about the female designation, and when Charging Party confirmed it was not a mistake, the manager said, “That’s all I need,” and hung up. Charging Party was later told someone more qualified was hired. The 3-year consent decree provides for $60,000 in backpay and compensatory damages to Charging Party, who intervened, and a letter of apology. The decree enjoins discrimination based on sex, sex stereotyping, gender identity. and transgender status, and retaliation. Defendant revised its policies to address sex stereotyping and gender identity.

**EEOC v. Apple-Metro, Inc., and Hawthorne Apple, LLC** (S.D.N.Y., No. 1:17-cv-04333, filed June 8, 2017, resolved Oct. 25, 2018)

EEOC filed this case alleging that defendants, an operator of Applebee’s restaurants in New York City and the surrounding suburbs, and the Applebee’s restaurant in Hawthorne, New York, where Charging Party worked, subjected Charging Party, a transgender woman, to a hostile work environment because of her gender identity, and terminated her because she was transgender and/or in retaliation for her complaints about the harassment. Charging Party started working for defendants on September 11, 2011, as a hostess. Her coworkers realized she was transgender and immediately began subjecting her to daily disparaging comments, calling her “tranny,” “chick with a dick,” and “Caitlyn,” a reference to Caitlyn Jenner. Employees referred to Charging Party with male pronouns and called her Daniel rather than her name, Danielle. They also asked about her genitalia. Charging Party complained about the harassment to the restaurant’s general manager, who also witnessed it, several times between September 15 and 21, 2011, and a bartender also complained about Charging Party’s treatment. The general manager fired Charging Party on September 25, 2011, allegedly for performance reasons, although Charging Party had not received any warnings or negative comments about her performance. The consent decree provides for $100,000 and enjoins Title VII discrimination. Defendants posted and distributed an antidiscrimination policy that prohibits gender identity discrimination. Annually, defendants will provide EEOC-approved trainings discussing discrimination and harassment based on sex and gender identity.

**EEOC v. Malcom S. Gerald and Associates** (N.D. Ill., No. 17-cv-67744, filed Sept. 19, 2017, resolved July 20, 2018)

EEOC filed this lawsuit alleging that defendant, a debt collection agency, subjected Charging Party to a hostile work environment due to his sexual orientation. Charging Party was hired as a collection agent in September 2014 and was subjected to an almost daily barrage of comments from managers and coworkers based on his perceived sexual orientation and failure to conform to gender norms. The comments included “fag,” “faggot,” “dick sucker,” and “sissy boy.” Employees also gossiped about Charging Party being gay and about whether he was in a relationship with another male employee. Charging Party repeatedly complained about the harassment to defendant officials. The 2-year consent decree provides for $25,000 and enjoins harassment based on sex, including sexual orientation, and retaliation. Defendant adopted antidiscrimination policies which prohibit harassment based on sexual orientation.

**EEOC v. Evergreen Motors, Inc., d/b/a Evergreen Kia** (N.D. Ill., No. 1:17-cv-07084, filed Oct. 2, 2017, resolved April 26, 2018)

EEOC filed this lawsuit alleging that defendant, a Chicago, Illinois, new and used car dealership, subjected Charging Party, a gay man with Crohn’s disease, to harassment based on his sex and his disability or perceived disability, resulting in his constructive discharge. Charging Party was diagnosed with Crohn’s disease in early 2011. Crohn’s is a bowel impairment that causes severe inflammation of the gastrointestinal tract, and results in Charging Party using the bathroom more frequently and for long periods of time. Defendant’s owner subjected him to regular disparaging remarks about his sexual orientation (gay slurs) and disability, sometimes combining the two by attributing Charging Party’s bowel issues to “anal sex escapades.” The owner also engaged in harassing physical conduct, chasing Charging Party out of the bathroom, banging on the bathroom door while yelling at him to get out, and putting his crotch in Charging Party’s face. Charging Party resigned in April 2015 because of the conduct. The 3-year consent decree provides Charging Party $100,000 (equally divided between backpay, compensatory damages, and attorney’s fees) and enjoins disability harassment, sex harassment (including sexual orientation), and retaliation. Defendant adopted and posted policies against ADA and Title VII discrimination, including based on sexual orientation, and provided training on the ADA and Title VII, including harassment based on sexual orientation.

**EEOC v.****Scottsdale Wine****Café, LLC d/b/a****5****Th****and Wine** (D. Ariz., No. 2:17-cv-00182, filed Jan. 20, 2017, resolved March 21, 2018)

EEOC filed this lawsuit alleging that the employer, an Arizona-based restaurant, subjected Charging Party and another male server to a hostile work environment based on sex, male, because they did not conform to sex- or gender-based stereotypes of men and retaliated against Charging Party. Charging Party and the other claimant worked as servers. Charging Party’s coworkers and managers were aware he is gay and subjected him and the other claimant to harassment based on their sexual orientation (Charging Party’s) or perceived sexual orientation (the other claimant). The harassment included unwanted physical touching of the crotch and buttocks, mocking behaviors (making kissing sounds, wolf whistles, winks) and comments, and slurs such as “faggot,” “fag,” “pussy,” and “sissy.” Charging Party complained about the harassment, but it continued. Shortly after Charging Party told a friend of defendant’s general manager that  he was thinking of filing a complaint and had contacted an attorney, Charging Party was terminated by the general manager and the head chef, two of his harassers. After the defendant failed to defend itself in court, the court found the defendant liable and granted a default judgment in the amount of $100,000 split between compensatory and punitive damages.

**EEOC v. Rocky Mountain Casing Crews** (D. N.D., No. 1:16-cv-428, filed Dec. 22, 2016, resolved Dec. 20, 2017)

EEOC filed this lawsuit alleging that defendant, a Wyoming-based oilfield contractor, subjected Charging Party to a hostile work environment because of his failure to conform to male sexual stereotypes and because of his sexual orientation. Charging Party, a gay man, was hired in January 2011 as a driver at a facility in Williston, North Dakota. After about a year of employment, Charging Party’s coworkers and immediate supervisor learned his sexual orientation and began referring to him with terms such as “queer,” “faggot,” “freak,” “pussy-boy,” and “cock sucker.” Charging Party was given pornographic materials and other objects relating to his sexual orientation; offensive graffiti appeared at worksites; and his truck was painted with pink polka dots and hearts. Defendant’s operations manager (OM) observed some of the offensive conduct but took no action. In June 2013, a coworker physically attacked Charging Party for rejecting the coworker’s sexual proposition, and when Charging Party reported the incident, the OM threatened Charging Party with discharge if the OM heard of another incident like that. The 3-year consent decree provides for $70,000 in compensatory damages and enjoins a hostile work environment based on sex or sexual orientation, failing to investigate complaints of a hostile work environment based on sex or sexual orientation, failing to take prompt corrective action in response to such complaints, and retaliation for complaining about sexual harassment.

**EEOC v. Bojangles Restaurants, Inc.** (E.D.N.C., Civ. No. 5:16-cv-00654, filed July 6, 2016, resolved December 4, 2017)

EEOC filed this lawsuit alleging that defendant, a North Carolina corporation operating a chain of fast food restaurants, subjected Charging Party to a hostile work environment because of her gender identity and retaliated against her for complaining about the harassment. Charging Party began working for defendant as a biscuit maker in 2012 and was repeatedly subjected to offensive comments about her gender identity and appearance. Managers demanded she engage in behavior and grooming practices that are stereotypically male and forbade her from entering the store as a female and from wearing make-up or fake fingernails while working. Charging Party was subsequently moved to a cashier position and told to change her behavior and look like a male. Charging Party complained in January and February 2013 about her treatment and was involuntarily transferred to another store and then discharged. The 2-year consent decree provides for $15,000 in compensatory damages and enjoins a hostile work environment based on sex and retaliation.

**EEOC v. Scott Medical Health Center, P.C.** (W.D. Pa., Civ. No. 2:16-cv-00225, filed March 1, 2016, resolved Nov. 16, 2017).

EEOC filed this lawsuit alleging that defendant, a provider of pain management and weight loss services, discriminated against Charging Party when it subjected him to harassment because of his sexual orientation and/or because he did not conform to the employer's gender-based expectations, preferences, or stereotypes, leading to his constructive discharge. Charging Party is gay and began working for defendant in a telemarketing position in May 2013. From July 2013 forward, his manager subjected him to comments about his sexual orientation, regularly calling him “fag,” “faggot,” and “queer.” He also made demeaning comments about Charging Party’s relationship with his male partner. When Charging Party complained, defendant took no action and after two to three more weeks of continued harassment, he resigned. After finding the defendant liable and holding a damages hearing, the court issued judgment to the EEOC in the amount of $55,500.43 (consisting of backpay, compensatory damages and punitive damages) and enjoined the defendant from sex discrimination, including based on sexual orientation, sex or gender stereotypes.

**Broussard****& EEOC****v. First Tower Loan LLC** (E.D. La., Civ. No. 2:15-cv-01161 (consolidated with 2:15-cv-02500), court granted EEOC's Motion to intervene on Sept. 17, 2015, resolved Oct 5, 2017)

Broussard filed a Title VII suit alleging First Tower fired him based on his gender identity. Broussard was hired as a manager-trainee and while completing new hire paperwork, he was required to produce his driver's license for identification. A manager questioned why the license listed his sex as "F" and Broussard explained he is a transgender man. Several days later, a vice president informed Broussard that he must dress and act as a female in the workplace because it was confusing to customers. As a condition of employment, First Tower required him to sign a statement agreeing to act and be treated as a female while working for First Tower. Broussard refused, and First Tower fired him. Broussard's complaint alleged that First Tower terminated him because he is transgender and because of his inability to conform to stereotypical expectations of gender. In September 2015, the court granted the EEOC's motion to intervene in Broussard’s lawsuit. Broussard resolved his claims with First Tower for $53,162 through arbitration. The 18-month consent decree between EEOC and First Tower prohibits discrimination based on gender identity, transgender status, or sex stereotyping. First Tower revised its EEO policies and provides training on sex stereotypes, gender identity and transgender status.

**EEOC v. Capital Restaurant Concepts, LTD. d/b/a Paolo’s** (D. D.C., No. 1:16-cv-2477, filed Dec. 20, 2016, resolved July 6, 2017)

EEOC filed this lawsuit alleging that defendant, the owner of five restaurants in Washington, DC, and Virginia, subjected Charging Party to a hostile work environment because of his sexual orientation. Charging Party was 18 years old when he was hired in April 2015 as a food runner at Paolo’s Ristorante in Washington; he became a server a few weeks later. Charging Party is gay and he alleges that kitchen staff, including the sous and executive chefs, regularly mocked him about his sexual orientation: referring to him in Spanish terms akin to the word “faggot,” whistling at him, using a falsetto voice when speaking to him, and questioning him about sexual scenarios with women that would “turn him straight.” In May 2015, Charging Party complained numerous times about the harassment to his supervisor and the general manager (GM), but while the executive chef stopped harassing him, other kitchen employees continued. Charging Party complained again to the GM, who told him he was too sensitive, and then complained to corporate about the continuing harassment and the GM’s response. After the area director spoke with managers about respecting others in the workplace, the kitchen staff stopped talking to Charging Party and he resigned in July 2015. The 3-year consent decree provides $50,000 in compensatory damages, injunctions against a hostile work environment based on sex and retaliation, and policies against harassment, including sexual orientation.

**EEOC v. Royal Dining Catering****, et****al.**(D. Ariz., No. 2:16-cv-03313, filed Sept. 29, 2016, resolved April 21, 2017)

EEOC filed this lawsuit alleging that defendants, Royal Dining Group, Royal Dining Catering, and Better 4 You Breakfast, food catering services which delivered packaged breakfasts and hot meals for school lunches, subjected a class of four gay male Charging Parties working as cooks to a hostile environment because they did not conform to sex- or gender-based expectations, and retaliated against the males and a female Charging Party for opposing the harassment. Coworkers referred to the males with demeaning and derogatory terms, including “faggot” in English and Spanish, told other employees that one Charging Party had AIDS when he called in sick, and used a feminized version of one Charging Party’s name; they also used mocking gestures such as a limp wrist or walking in an exaggeratedly feminine way. The male Charging Parties repeatedly complained about the harassment and the female Charging Party also reported the harassment. The male Charging Parties filed charges of discrimination with EEOC in May 2013 and all Charging Parties were laid off at the end of May, with defendant telling the female Charging Party it did not need “problem employees.” From June to August 2013, Charging Parties sought rehire, but were not recalled although defendants were hiring for the coming school year. The 24-month consent decree between EEOC and Better 4 You provided $62,500 to the class of five.

**EEOC v. Pallet Companies d/b/a IFCO Sys. North Am., Inc.** (D. Md., No. 1:16-cv-00595, filed Mar. 1, 2016, resolved June 28, 2016)

EEOC filed this lawsuit alleging that defendant, a provider of reusable plastic containers, discriminated against Charging Party by harassing her because of her sexual orientation and terminating her in retaliation for complaining about the harassment. Charging Party is gay. She was hired in September 2013 as a forklift operator. Charging Party’s supervisor made repeated comments, sometimes accompanied by sexually suggestive gestures, about her sexual orientation and failure to conform with stereotypical female gender norms. A few days after Charging Party complained about the harassment, defendant terminated her employment. The 2-year consent decree provides $202,200 in damages ($182,200 in backpay and compensatory damages to Charging Party and $20,000 to the Human Rights Campaign Foundation) and enjoins sex discrimination and retaliation. Defendant retained an expert on sexual orientation and gender identity to develop training on LGBT workplace issues.

**EEOC v. Deluxe Financial Services Corp.****,** (D. Minn., No. 15-cv-02646, filed June 4, 2015, resolved Jan. 20, 2016)

EEOC filed this lawsuit alleging that defendant, a check-printing and financial services corporation, discriminated against Charging Party because of her gender identity when it subjected her to different terms and conditions of employment and to a hostile work environment. When Charging Party first began working for defendant in 2007, she presented as a male. In 2010, she began to present as a woman and informed her supervisors that she was transgender and requested permission to use the women’s restroom and that her sex designation be changed on personnel records. Defendant refused to let Charging Party use the women's restroom and changed her sex-designation on only some records. From 2010 until July 2011, defendant supervisors and coworkers intentionally used the wrong pronoun when referring to Charging Party and made derogatory statements about her female appearance. The 3-year consent decree, provided $115,000 (in backpay and compensatory damages, and $39,962.11 in attorney’s fees to Charging Party, who intervened adding other claims under Title VII and the ADA) and enjoined sex discrimination (including based on sex stereotyping, gender identity and transgender status), ADA discrimination, and retaliation. Defendant was required to ensure that transgender employees have access to restrooms that conform to their gender identity and that its health plans do not include sex-based exclusions for medically necessary care, including transgender status.

**EEOC v. Lakeland Eye Clinic, P.A.** (M.D. Fla., No. 8:14-cv-2421, filed Sept. 25, 2014, resolved April 9, 2015)

EEOC filed this lawsuit alleging that defendant, a group of health care professionals, discriminated against Charging Party when it terminated her because of her gender identity and/or because she did not conform to the employer's gender-based expectations, preferences, or stereotypes. At the time of her hire in 2010 as director of hearing services, Charging Party presented as a male. In February 2011, she began to present as a female; wearing make-up and women’s clothing. In April 2011, defendant asked about her changing appearance, and Charging Party stated she was transitioning from male to female. Defendant terminated Charging Party in June 2011, allegedly because her job was being eliminated; however, she was replaced by a male who conformed to traditional male gender norms. The 2-year consent decree provides for $150,000 in backpay and compensatory damages and prohibits discrimination based on transgender status or nonconformity to sex- or gender-based stereotypes. Defendant implemented policies and training concerning gender discrimination, including based on transgender status, and sex- or gender-based preferences, expectations or stereotypes.

**EEOC v. VXI Global Solutions, Inc. a/k/a VXI Global Solutions, LLC**, (C.D. Cal. No. 2:14-cv-07444, filed Sept. 24, 2014, resolved Sept. 11, 2015)

EEOC alleged that defendant, a national provider of call centers and other services to businesses, subjected female and male employees at a call center in Los Angeles, California, to a sexually hostile work environment and retaliated against employees for reporting the harassment and filing EEOC charges. Claimants worked in an open area answering phones. Male supervisors subjected the six female Charging Parties to sexually explicit comments, unwelcome physical contact, and pornographic images. Female supervisors subjected the male Charging Parties to sexually explicit comments, requests for sex and pornographic images of naked women. One male supervisor showed Charging Parties pornographic images of naked women and called men who objected “fag” and “gay.” Charging Parties complained about the harassment to HR, but no corrective action was taken. Employees who complained or filed EEOC charges were threatened, issued disciplinary warnings, and/or were terminated. The 4-year consent decree provides $600,000 in compensatory damages to the nine Charging Parties and one claimant and enjoins sex discrimination and retaliation. Defendant retained an EEO consultant and implemented policies against discrimination and harassment and retaliation, including based on sex.

*Appellate**Cases*

**EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.** (6th Cir. No. 16-2424) (opening brief filed Feb. 10, 2017; reply brief filed June 9, 2017).  Plaintiff-Intervenor Aimee Stephens, a transgender woman, alleged that her employer, R.G. & G.R. Harris Funeral Homes, Inc. (“Funeral Home”), terminated her because of her sex in violation of Title VII.  Stephens alleged that she presented as a male when she began her employment, and that she was fired six years later after she informed the Funeral Home that she had gender identity disorder, was in the process of transitioning from male to female, and would need to dress as a woman at work.  The EEOC filed suit alleging that the Funeral Home had fired Stephens “because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to [the Funeral Home’s] sex- or gender-based preferences, expectations, or stereotypes.”  The district court granted summary judgment for the Funeral Home.  The Sixth Circuit reversed and granted summary judgment to the EEOC, holding that “[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”  The court also held that the Religious Freedom Restoration Act did not provide a defense to the EEOC’s Title VII claim.  On June 15, 2020, the Supreme Court affirmed judgment for the EEOC in *Bostock v. Clayton County*, 140 S. Ct. 1731 (2020), holding that Title VII prohibits discrimination on the basis of transgender status.

Amicus Briefs

*Transgender Status & Gender Identity*

**Jamal v. Saks & Co.** (S.D. Tex. No. 4:14-cv-02782) (amicus brief submitted with motion for leave to file Jan. 22, 2015). Plaintiff Leyth Jamal, a transgender woman, alleged that her employer, Saks, violated Title VII by harassing and discharging her because of her sex/gender.  Saks moved to dismiss on the ground that Jamal’s claim was based on her “status as a transsexual,” and that “transsexuals are not a protected class under Title VII.”  Saks further argued that Jamal failed to comply with the administrative prerequisites to suit because her EEOC charge described her as a “male (transgender),” yet her complaint referred to her as female.  Finally, Saks argued that Jamal could not state a claim for retaliation because she had no reasonable belief that the conduct she complained of violated Title VII.  In an amicus brief, the EEOC argued that (1) transgender discrimination is cognizable as discrimination because of sex, (2) Jamal satisfied the administrative prerequisites to suit, and (3) Jamal engaged in protected activity for purposes of a retaliation claim. On March 10, 2015, the district court terminated the case pursuant to a stipulation of dismissal.

*Sexual Orientation*

**O’Daniel****v. Industrial Service Solutions** (5th Cir. No. 18-30136) (amicus brief filed May 2, 2018).  Plaintiff-Appellant Bonnie O’Daniel objected on Facebook to “a man (or possibly a transgender woman) wearing a dress at Target.”  Her employer, Industrial Service Solutions, reprimanded her for the Facebook post, subjected her to several new rules, and subsequently terminated her.  O’Daniel sued under Title VII, alleging in part that she had been retaliated against.  The District Court for the Middle District of Louisiana dismissed the retaliation claim, holding that it was unreasonable for O’Daniel to believe that Title VII prohibits discrimination based on her status as a married, heterosexual female, or to believe that Title VII prohibits discrimination based on sexual orientation.  In an amicus brief filed in support of neither party, the EEOC argued generally that an employee may establish protected activity under Title VII’s anti-retaliation provision based on opposition to sexual orientation discrimination, including discrimination based on heterosexual orientation.

**Horton v. Midwest Geriatric Management, LLC** (8th Cir. No. 18-1104) (amicus brief filed March 7, 2018).  Plaintiff-Appellant Mark Horton sued Midwest Geriatric Management under Title VII, alleging that the defendant had withdrawn a job offer when it discovered that he was in a same-sex relationship.  The District Court for the Eastern District of Missouri dismissed the case, stating that it was bound by Eighth Circuit precedent holding that Title VII does not prohibit sexual orientation discrimination.  In an amicus brief, the EEOC argued that sexual orientation discrimination is cognizable as sex discrimination under Title VII and urged the Eighth Circuit not to rely on its precedent.  The Eighth Circuit stayed Horton’s appeal pending the Supreme Court’s decision in *Bostock v. Clayton County*, 140 S. Ct. 1731 (2020).**On June 15, 2020, the Supreme Court held in *Bostock*that Title VII prohibits discrimination on the basis of sexual orientation.  On July 6, 2020, the Eighth Circuit reversed the district court’s judgment and remanded for further proceedings in light of *Bostock.*

**Zarda****v. Altitude Express, Inc.** (2d Cir. No. 15-3775) (amicus brief filed June 23, 2017).  Plaintiff-Appellant Donald Zarda was a skydiving instructor.  His employer, Altitude Express, fired him soon after he disclosed he was gay to a customer during a jump.  Zarda sued Altitude Express claiming sex discrimination under Title VII, and gender and sexual orientation discrimination under New York state law.  The District Court for the Eastern District of New York granted summary judgment on the Title VII claim, but found sufficient evidence of sexual orientation discrimination to allow Zarda’s state law discrimination claim to go forward.  A panel of the Second Circuit affirmed dismissal of the Title VII claim based on existing precedent, but the full court voted to rehear the case.  In an amicus brief, the EEOC argued that Title VII’s prohibition on sex discrimination includes a ban on sexual-orientation discrimination.  On February 26, 2018, the en banc Second Circuit overruled its precedent and held in a landmark opinion that Title VII prohibits sexual orientation discrimination as a form of sex discrimination.  On June 15, 2020, the Supreme Court affirmed judgment for Zarda in *Bostock v. Clayton County*, 140 S. Ct. 1731 (2020), holding that Title VII prohibits discrimination on the basis of sexual orientation.

**Cargian****v. Breitling USA, Inc.** (2d Cir. No. 16-3592) (amicus brief filed Feb. 2, 2017).  Plaintiff-Appellant Frederick Cargian sued his employer, Breitling USA, under Title VII, alleging that he was terminated because of gender stereotyping.  According to Cargian, Breitling USA had a “boy’s club” atmosphere and Cargian, who is gay, was treated as one of “the girls.”  The District Court for the Southern District of New York granted summary judgment for Breitling USA, citing Second Circuit precedent that sexual orientation discrimination was not actionable under Title VII, and noting that Cargian’s gender-stereotyping claim impermissibly “conflates a sexual orientation discrimination claim with a gender-stereotyping claim.”  In an amicus brief, the EEOC argued that Title VII prohibits sexual orientation discrimination and urged the Second Circuit to overrule its contrary precedent.  On September 10, 2018, the Second Circuit vacated the award of summary judgment and remanded for further proceedings in light of *Zarda**v. Altitude Express, Inc.*, 883 F.3d 100 (2d Cir. 2018) (en banc), which held that Title VII prohibits discrimination on the basis of sexual orientation.

**Hively v. Ivy Tech Community College** (7th Cir. No. 15-1720) (amicus brief filed Aug. 25, 2016).  Plaintiff-Appellant Kimberly Hively was a part-time adjunct professor at Ivy Tech Community College.  She alleged that Ivy Tech refused to promote her or grant her full-time employment because of her sexual orientation, in violation of Title VII.  The District Court for the Northern District of Indiana dismissed her complaint for failure to state a claim.  A panel of the Seventh Circuit affirmed based on circuit precedent holding that Title VII does not prohibit discrimination on the basis of sexual orientation.  In an amicus brief, the EEOC urged the full court to rehear the case and hold that Title VII prohibits sexual orientation discrimination.  The en banc court agreed to rehear the case, and on April 4, 2017, it held in a landmark decision that Title VII prohibits sexual orientation discrimination as a form of sex discrimination.  With this decision, the Seventh Circuit became the first federal court of appeals to make sexual orientation discrimination actionable under Title VII.

**Christiansen v. Omnicom Group, Inc.** (2nd Cir. No. 16-748) (amicus brief filed June 28, 2016).  Plaintiff-Appellant Matthew Christiansen brought a Title VII lawsuit against his employer, Omnicom, alleging that he was subjected to a sexually hostile work environment because he was gay and perceived as unmanly. The District Court for the Southern District of New York dismissed Christiansen's complaint for failure to state a claim based on Second Circuit precedent holding that Title VII does not prohibit sexual orientation discrimination.  In an amicus brief, the EEOC argued that sexual orientation discrimination is cognizable as sex discrimination under Title VII and urged the Second Circuit to reconsider its contrary precedent.  On March 27, 2017, a panel of the Second Circuit said it lacked the power to reconsider circuit precedent, but held that Christiansen had alleged sufficient facts to state a Title VII claim for gender stereotyping.

**Evans v. Georgia Regional Hospital** (11th Cir. No. 15-15234) (amicus brief filed January 11, 2016). Plaintiff-Appellant Jameka Evans brought a Title VII lawsuit against her employer, Georgia Regional Hospital, claiming that she was discriminated and retaliated against because of her sexual orientation and her nonconformity to gender-based stereotypes.  The District Court for the Southern District of Georgia dismissed the discrimination claim on the ground that Title VII did not prohibit sexual orientation discrimination, and dismissed the retaliation claim on the ground that she could not have had a reasonable belief that she was opposing conduct made unlawful by Title VII.  In an amicus brief, the EEOC argued that Title VII's prohibition on sex discrimination encompasses a prohibition on discrimination because of sexual orientation.  With respect to the retaliation claim, the EEOC argued that Evans’s belief that she was opposing unlawful conduct was objectively reasonable.  On March 10, 2017, the Eleventh Circuit said that it was bound by existing law holding that discrimination based on sexual orientation is not actionable under Title VII.  The court held that Evans had waived her objection to dismissal of her retaliation claim.

**Muhammad v. Caterpillar Inc.** (7th Cir. No. 12-173) (amicus brief filed October 9, 2014). Plaintiff-Appellant Warnether Muhammad filed this Title VII suit against his employer, Caterpillar, Inc., alleging that his co-workers created a hostile work environment based in part on his sexual orientation, and that his supervisor unlawfully retaliated against him by suspending him after he complained about the harassment.  The district court granted Caterpillar’s motion for summary judgment.  A panel of the Seventh Circuit affirmed, stating that Title VII does not prohibit sexual-orientation harassment or retaliation against individuals who oppose it.  Muhammad petitioned for rehearing.  In an amicus brief addressing the retaliation claim, the EEOC argued that an increasing number of courts, as well as the EEOC, recognize that intentional discrimination based on an individual's sexual orientation can be grounded in sex-based norms, preferences, expectations, or stereotypes.  Thus, the EEOC said, an individual opposing sexual orientation discrimination can have a good faith belief that the conduct violates Title VII, and that such an individual therefore should be protected from retaliation.  The EEOC urged the panel to modify its categorical statements to the contrary, overruling the Circuit's precedent if necessary.  On October 16, 2014, the panel denied the petition for rehearing but issued an amended opinion deleting the original rulings regarding the scope of Title VII coverage.  The revised panel opinion affirms the district court's summary-judgment for Caterpillar on other grounds, on which the Commission took no position.Return to top

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