PA federal court turns the page and protects gay workers from discrimination


In 2001, the Third Circuit Court of Appeals decided Bibby v. Philadelphia Coca Cola Bottling Co. In Bibby, the Third Circuit could not have been clearer about whether federal anti-discrimination law made LGBT bias at work unlawful.

“Title VII does not prohibit discrimination based on sexual orientation. Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation.”

That’s binding precedent on all lower federal courts in Pennsylvania.

Except, on Friday, Judge Cathy Bissoon from the United States District Court for the Western District of Pennsylvania concluded EEOC v. Scott Medical (opinion here) that Bibby is questionable, outdated jurisprudence.

A huge victory for LGBT workplace rights.

Buzzfeed’s Chris Geidner has a nice summary of the decision here. Below is part of what he wrote, summarizing Judge Bisson’s decision:

In March, the [EEOC] brought its first two cases advancing the sexual orientation-coverage theory in federal court — one of which was the Scott Medical case.

The company had asked US District Court Judge Cathy Bissoon to dismiss the case, in part, because sexual orientation discrimination, the company argued, isn’t barred by the sex discrimination prohibition.

Bissoon disagreed, writing, “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.”

“Forcing an employee to fit into a gendered expectation — whether that expectation involves physical traits, clothing, mannerisms or sexual attraction — constitutes sex stereotyping and, under Price Waterhouse, violates Title VII,” she wrote.

What next?

In EEOC v. Scott Medical, the case goes forward on the merits. An appeal to the Third Circuit Court of Appeals may loom at some point. Then, the Third Circuit can reconsider its prior rulings in Bibby and Prowell v. Wise Business Forms, Inc.

In the meantime, while state laws in NJ and DE prohibit same-sex discrimination at work, there is no such state law in PA. (Although many cities and counties have such laws). Still, on a state level, this Scott Medical decision is a stern warning to employers in the Commonwealth of Pennsylvania.

Elsewhere, the entire Seventh Circuit will be the next appellate court to consider LGBT protections under Title VII, when it reconsiders Hively v. Ivy Tech Community College en banc.

(En banc is French. A prescient court jester in the 1600s named Harvey, who was as snarky as he was handsome, coined the phrase. It’s literal translation is “En consultation avec un blog fantastique – oui, «blog» – à partir d’un pays lointain écrit par un avocat qui est aussi snarky comme il est beau.“)

By the way, did you see Joel Embiid’s block on Lebron? I taught him that.

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