Labor & Employment Law Daily Bullied gay paper deliverer plausibly alleges gender nonconformance claim
Tuesday, January 15, 2019

Bullied gay paper deliverer plausibly alleges gender nonconformance claim

By Marjorie Johnson, J.D.

A gay newspaper deliveryman who claimed he was physically bullied and called “faggot” and other derogatory names by both male and female coworkers and supervisors, and terminated without cause following a particularly egregious altercation at the loading docks, advanced his Title VII discrimination and retaliation claims. Denying the employer’s motion to dismiss, a federal court in Ohio determined that he sufficiently alleged gender bias based on gender nonconformance, as allowed by recent Sixth Circuit jurisprudence, and also plausibly alleged that he was an employee despite his independent contractor agreement (Varner v. APG Media of Ohio, LLC dba The Athens Messenger, January 9, 2019, Sargus, E., Jr.).

For 16 years, the plaintiff worked for a publishing company pursuant to the terms of an independent contractor newspaper delivery agreement. The contract provided that either party could terminate the contract for any reason and without cause by providing 30 days written notice. Either party could also terminate the contract for cause immediately, which could include a material breach of the contract.

Homophobic comments and bullying. The plaintiff claimed that throughout his tenure, supervisors and coworkers had constantly harassed him due to his sexuality. This included both verbal and physical attacks, included calling him “faggot” and other derogatory names and refusing to help him with his route if he was sick or injured. After he began complaining internally to his supervisors and HR, no action was taken, and management instead began to “conveniently” find and/or create a basis to terminate him.

The harassment came to a head when three coworkers began attacking and screaming at him and his daughter at the loading docks. When he tried to move his car to leave, a coworker screamed, “your faggot ass can walk the newspapers there.” The next morning, he met with his supervisors who terminated his agreement without explanation. He subsequently received a letter stating that the company was exercising its “termination rights,” and that effective in 30 days his agreement was terminated. Shortly thereafter, however, he was advised that his termination was effective immediately. He subsequently filed this lawsuit asserting violations of state and federal employment discrimination laws, breach of contract, and intentional infliction of emotional distress.

Independent contractor? The court squarely rejected the employer’s assertion that his Title VII claims must be dismissed because his independent contractor agreement established his independent contractor status. It also argued that while the issue of employee status is generally a mixed question of law and fact, a judge normally can make it as a matter of law. However, the cases upon which it relied had made that legal determination on summary judgment.

While the agreement was certainly evidence of an independent contractor relationship, it was only one factor to be assessed and the plaintiff made several factual allegations relating to other factors from which it could be reasonably inferred that he was an employee. For instance, he asserted that he had an uninterrupted 16-year relationship with the employer, which controlled his work to the extent that it dictated the routes and times of the delivery services. He also alleged that his supervisors covered shifts for drivers who were sick or injured and that he was required to obtain the products at the employer’s location at particular times. Furthermore, the company subjected him to reviews, feedback, and potential discipline.

Gender nonconformance. Based on current jurisprudence, the employee also plausibly alleged that he was a member of a protected class for purposes of advancing his discrimination and retaliation claims. Though the employer argued that the Sixth Circuit’s 2006 decision in Vickers v. Fairfield Medical Center made clear that Title VII does not cover discrimination based upon sexual orientation, the plaintiff pointed to the district court’s more recent 2017 decision in Spellman v Ohio Dept’t of Transportation. That case held that a plaintiff could assert a claim of sexual harassment on the basis of her gender or sexual orientation because she offered evidence that she was harassed by both men and women “because of” her sex.” It relied upon the EEOC’s determination that sexual orientation is “inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”

The Spellman court also explained that while the Sixth Circuit had made clear that sexual orientation is not an explicitly protected class, “Title VII nevertheless protects a homosexual or transgender plaintiff from harassment for failure to conform to traditional sex stereotypes, for instance by expressing less feminine mannerisms and appearance.” Then in 2018, the Sixth Circuit recognized that Title VII includes prohibitions on discrimination on the bases of “transgender status and transitioning identity.” In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the appeals court narrowed its Vickers ruling by adding a “new ‘observable-at-work’ requirement.”

With this legal backdrop, the court found that the plaintiff plausibly alleged claims of gender bias and retaliation under Title VII. Significantly, he alleged that he was verbally and physically attacked and threatened with assault, terminated, and retaliated against on the basis of sex. Those alleged harassing comments and physical harassment and adverse employment actions may be reasonably construed as motivated by sex stereotyping and/or gender nonconforming behavior. Moreover, like the plaintiff in Spellman, he alleged that he was harassed by both men and women “because of his sex.”

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