LGBT bias costs one employer the maximum amount allowed by law


Hi there.

Did you have a nice Thanksgiving?

Notwithstanding Thursday’s feast, I rallied hard over the weekend. Indeed, I needed my energy up to check some boxes on my older daughter’s Christmas list. (She claims that number one is commonplace in Canada. I’m not so sure).

But, I’m taking a break from the shopping to wax employment law for you. Today, I want to get into LGBT rights at work.

From bad to worse for one employer.

About a year ago, I blogged here about a groundbreaking decision from a federal court in Pittsburgh. Back on November 4, 2016, Judge Cathy Bissoon concluded in EEOC v. Scott Medical (opinion here) that Title VII covers discrimination based on sexual orientation. About five months later, the Seventh Circuit reached the same conclusion in Hively v. Ivy Tech. As big as the Hively decision was — the first appellate court to recognize sexual orientation as a protected class under Title VII — Scott Medical was pretty big too. Indeed, in Scott Medical, Judge Bissoon departed from Third Circuit precedent (Bibby v. Philadelphia Coca Cola Bottling Co.), which held that “Title VII does not prohibit discrimination based on sexual orientation.” Judge Bissoon felt that Bibby was both questionable and outdated.

Fast forward a few months. Scott Medical files for bankruptcy, defense counsel withdraws, and the EEOC ends up taking a default judgment against the employer.

Fast forward again to November 16, 2017, following a hearing on damages, Judge Bissoon her findings of fact and conclusions of law (here). Notably, she concluded that Anthony Massaro, the individual on whose behalf the EEOC initiated the action, “was subjected to sex-based harassment in the form of anti-gay slurs and comments directed at him by his supervisor.” And, after the company owner became aware of the situation, he did nothing to help. So, the harassment continued and Mr. Massaro was forced to quit. Indeed, the behavior was so bad, that the court awarded the maximum it could by law for compensatory and punitive damages.

What does this mean for other employers?

As other claims of sexual harassment continue to grab the headlines, don’t let your guard down on less common instances of harassment — even ones that seemingly do not violate federal law. There a growing trend in the federal court system to protect LGBT rights at work.  (Keep an eye on this case.) Plus, the Supreme Court may weigh in soon here and here. Further, even if federal law doesn’t protect certain LGBT rights at work, state or local law may.

Now, more than ever, no matter the form of potentially unlawful harassment…

  1. Make sure your employees know how to speak up about it,
  2. Train your managers about how to respond, and
  3. Take all complaints seriously
Image Credit: CC BY-SA 3.0, Link


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