The EEOC is Making Waves with New Electronic Notification System and Two Sexual Orientation Cases

Legal Alert

March 9, 2016

The Equal Employment Opportunity Commission (“EEOC”) is making waves with a new electronic notification system for employers and by filing its first two sex discrimination cases based on sexual orientation.

EEOC goes digital with a new electronic notification system

Through a new program called the Action Counsel for Transformation to a Digital Charge System (ACT Digital), the EEOC will now communicate electronically with employers that have a charge of discrimination filed against them. Instead of receiving a charge of discrimination by mail, employers will now receive notifications via e-mail. In order to facilitate this program, the EEOC requests all employers to provide contact information, including an e-mail address, to the employer’s local EEOC office. EEOC local offices are listed here.

If it receives a charge of discrimination notification e-mail, the employer will be prompted to log into the “Respondent Portal” using a unique password. Within the Portal, employers can view and download the charge, review and respond to an invitation to mediate, submit a position statement, and provide or update contact information.

In an attempt to secure uploaded information, only EEOC officials and the Respondent will have access to the Portal—the Charging Party will not. However, this does not mean that the Charging Party will not see the employer’s position statement. Pursuant to a new policy effective January 1, 2016, all EEOC offices will provide copies of an employer’s position statement to the Charging Party. This policy’s one-sidedness result in employers desiring to obtain a copy of the Charging Party’s response/statements to submit a formal request to the EEOC under the Freedom of Information Act (FOIA).

EEOC Files Sexual Orientation Discrimination Lawsuits

While sexual orientation is not expressly protected under Title VII of the Civil Rights Act of 1964, discrimination on the basis of sex is prohibited. In July 2015, the EEOC determined that sexual orientation discrimination is unlawful sex discrimination. The rationale stems from the ideas that sexual orientation cannot be understood without reference to sex; such discrimination is rooted to sex stereotypes and gender norms and is often based on an individual’s personal association with members of a particular sex.

In furtherance of its determination, the EEOC filed its first two lawsuits based on sexual orientation discrimination. One case was filed in the U.S. District Court for the Western District of Pennsylvania against Scott Medical Health Center. There, the EEOC charged that a gay male employee was subjected to harassment by his manager, including repeated anti-gay epithets and highly offensive comments about his sex life, before quitting his job. The other case was filed in the U.S. District Court for the District of Maryland against Pallet Companies, d/b/a IFCO Systems NA. That case involves a lesbian employee who was harassed by her supervisor about her sexual orientation, appearance, and dress. The outcomes of these cases are expected to contribute to the otherwise narrow body of case law on sexual orientation discrimination.

If you have any questions regarding these issues, please contact your labor and employment counsel at Smith, Gambrell & Russell, LLP.

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.