Will Arizona Gay Rights Lawsuit by EEOC Be One of Last Under Trump Administration?

A new lawsuit by the Equal Employment Opportunity Commission targeting anti-gay bias at an Scottsdale wine bar caught the attention of gay-rights groups nationwide.

Whether such bold actions will continue under the Trump Administration, though, is anyone's guess.

The federal complaint filed on Friday, January 20, alleges that the staff and 5th and Wine in Scottsdale subjected two servers to repeated and severe sexual harassment.

Under President Trump, the five-member U.S. Equal Employment Opportunity Commission is expected to have a 3-2 GOP majority by late 2017.

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As the complaint in Arizona district court alleges, the 5th and Wine staff directed sexually charged comments and behavior toward the men because they "did not conform to sex- or gender-based assumptions, expectations, norms, or stereotypes of men."

If the EEOC's successful, Fifth and Wine could be on the hook for back pay and punitive damages.

For several years now, the EEOC has advanced its current policy equating bias against sexual orientation with gender bias.

In July of 2015, the five-member U.S. EEOC formally adopted the policy after a 3-2 vote, ruling that "sexual orientation discrimination also is sex discrimination because it necessarily involves discrimination based on gender stereotypes."

One of the two Republican members who voted against the policy, Constance Barker, wasn't confirmed at the end of last year, leaving a vacancy that Trump will likely soon fill.

The three-Democrat majority is expected to fall apart later this year, after the term of Democrat Jenny Yang expires in July.

click to enlarge Trump's pick for U.S. Attorney General, Alabama Senator Jeff Sessions, has caused fear in the LGBT community that hard-fought advances will be rolled back. - GAGE SKIDMORE VIA FLICKR
Trump's pick for U.S. Attorney General, Alabama Senator Jeff Sessions, has caused fear in the LGBT community that hard-fought advances will be rolled back.
"Assuming the Senate confirms Trump’s prospective nominees without too much difficulty, a Republican majority should be in place by late 2017," as Bloomberg BNA reporter Kevin McGowan put it in a December 13, 2016 article about Barker.

A Buzzfeed article on Tuesday about the Scottsdale case noted that it raises questions about how the Trump Administration will address LGBT issues.

"The White House did not immediately respond to a question from BuzzFeed News on Tuesday about whether it concurred with the EEOC’s view that a ban on sex discrimination also covers gay workers," the article says. "Members of the Trump administration have expressed contradictory positions on LGBT rights."

In particular, concern has been focused on Alabama Senator Jeff Sessions, Trump's choice for U.S. Attorney General.

Sessions' confirmation vote by the Senate Judiciary Committee has been put off until January 31.

The Republican senator has been a fierce opponent of LGBT issues throughout his career.

Local efforts to promote equality could advance with or without support from the feds.

Phoenix, Tempe, Flagstaff, Sedona, and Tucson all have ordinances that make it illegal for businesses to discriminate against employees because of sexual preference.

The alleged abuse at 5th and Wine shows that Scottsdale, among the cities that have resisted an inclusive ordinance, really does have a problem, activist Angela Hughey wrote in an op-ed published in the Scottsdale Independent on Wednesday.

"We know that the overwhelming majority of business owners in Scottsdale are good people and would never treat others in the despicable manner described in the complaint," she wrote.

"The alleged discrimination serves as the perfect example of why an inclusive non-discrimination ordinance would not only deter the few bad actors, but also give people legal recourse in the unfortunate circumstance when they do face discrimination."

Hughey said she doesn't have enough information to know whether the Trump Administration will attempt to roll back relatively recent advances in LGBT rights.

"Discrimination existed before this administration and continues to be an unfortunate reality," Hughey said. "That is why we must have policies in place to ensure that everyone is protected."

Hughey is the president of One Community, an Arizona coalition behind the UNITY Pledge several cities including Phoenix have signed on to.  The group is known for its popular signs now hanging in many local storefronts, "Open for Business to Everyone!"

The alleged victims at 5th and Wine claim they endured months of taunting, open slurs, and assaults.

One victim, who was perceived to be gay, suffered physical abuse including a co-worker touching his penis and butt, hitting him in the penis, and pinching his arms, the complaints states.

The other man, who is gay, claims he was fired in 2013 after he complained about the abuse by staff and supervisors that had last more than a year.

"I feel like this could set a very important precedent for everybody," one of the alleged victims told the Phoenix New Times. "It's a case where me and other people were targeted for being kind of different. We were abused, and it was terrible."

That, according to the EEOC, violated Title VII of the Civil Rights Act of 1964, which prohibits sex-based discrimination.

Read New Times' Monday story for more details.

According to the complaint, general manager Scott Yanni participated in the alleged discrimination. The EEOC alleges that complaints to managers including Yanni resulted only in retaliation.

Neither Yanni nor other representatives of 5th and Wine have responded to a message from New Times or commented to other news media.

"Employers cannot allow harassment based on sexual orientation, whether actual or perceived," said Mary Jo O'Neill, EEOC Phoenix district office regional attorney, in a written statement about the case.

An article published online on Tuesday by ABC-15 News (KNXV-TV) states that the bar and restaurant's lawyer declined comment about the suit.

Channel 15 also said several negative comments had shown up on 5th and Wine's Facebook page, but those appear to have been deleted.

"See you in court!" said one comment on Wednesday by a Facebook user, (not by either alleged victim), that was gone by that afternoon. Several emoticon "angry" faces remained on the Facebook page along with the "likes."

The flap sparked a few critical comments on Twitter, too.

"If you know anyone who frequents @5thandWine, please send them this," activist and Phoenix art-gallery owner Stacey Champion tweeted this week. "Disgusting."
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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.
Contact: Ray Stern