Labor & Employment Law Daily Comments relating to pansexual officer’s gender nonconformity and temporary Wiccan tattoos supported bias claims
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Thursday, October 29, 2020

Comments relating to pansexual officer’s gender nonconformity and temporary Wiccan tattoos supported bias claims

By Marjorie Johnson, J.D.

At the officer’s disciplinary hearings, the police commissioner allegedly stated that the officer’s wearing of a dress was an “embarrassment” and a “disgrace” to the police department and raised the issue of his temporary tattoos bearing religious symbols in recommending his termination.

A pansexual police officer ostensibly discharged because of his DUI arrest plausibly alleged Title VII and Sec. 1983 claims asserting that he was actually fired because he practiced gender noncomformity, including arriving to work in a dress and makeup before changing into his uniform; because he wore a Henna tattoo of certain Wiccan runes on his head and hands as an expression of his closely held religious beliefs; and/or in retaliation for filing an EEOC charge following his suspension. Denying in part the defendants’ motion to dismiss, a federal district court in Pennsylvania held that evidence of the police commissioner’s discriminatory remarks and disparate treatment supported his claims of sex and religious discrimination, and the suspicious timing suggested a retaliatory motive. The officer also advanced his Sec. 1983 individual-capacity claims against the commissioner and mayor, but his Monell claim against the city was dismissed without prejudice (Light v. Blair, October 23, 2020, Rufe, C.).

Ordered to remove eyeliner. The officer identified as a male pansexual and practiced gender nonconformity, including sometimes wearing feminine clothing and makeup. In July 2018, he arrived at the police station wearing a dress and eyeliner before changing into his uniform. He did not remove the eyeliner, however, and the police commissioner allegedly ordered him to remove his makeup. In contrast, female officers were permitted to wear facial makeup on duty.

Disciplined for Henna tattoo. The officer was also Buddhist and practiced certain Wiccan traditions, both of which were closely held religious beliefs. When he arrived at work wearing a Henna tattoo of certain Wiccan runes on his head and hands in October 2018, he was allegedly sent home and told not to return until the temporary tattoo was removed. Though he informed his superiors that the markings were religious symbols, he was issued a written reprimand and ordered “to write a memorandum explaining his actions.” In contrast, he claimed that officers who wore the symbol of the cross on their foreheads on Ash Wednesday were not disciplined.

DUI arrest. On January 1, 2019, the officer was arrested for suspected DUI. Two days later he was placed on administrative leave. He received a hearing on January 14 and placed on an unpaid suspension the next day, pending the conclusion of the DUI charges. On May 15, he was admitted into the state’s accelerated rehabilitative disposition program and received a 60-day suspension of his driver’s license and six months of probation. Under the program, certain first-time offenders charged with minor crimes receive an expungement of their arrest record upon successful completion of a probationary period.

EEOC charge. Meanwhile, on February 14, 2019, the officer filed an EEOC charge alleging sex and religious discrimination based on his suspension. He received a right to sue letter on September 9 and filed this action on October 31. The city reconvened his disciplinary hearing on December 4 and terminated him on December 7. He then amended his lawsuit to allege claims relating to his discharge.

Gender and religious bias. Allowing his claims of gender and religious discrimination to advance, the court found that the alleged discriminatory remarks and disparate treatment supported an inference of bias and suggested pretext. In particular, he alleged that at his January 14 hearing following his DUI arrest, the police commissioner stated that his wearing of a dress was an “embarrassment” and a “disgrace” to the police department. The commissioner also allegedly raised the issues of his gender nonconformity and Henna tattoos at the December 4 hearing, with a recommendation that he be terminated as a result thereof. Additionally, he claimed that in deciding to terminate him, the mayor considered numerous violations in his record of not confirming to the police department’s dress code.

The officer also alleged that he was treated unfairly since the city did not terminate numerous other officers who had pleaded guilty and/or been convicted of driving under the influence. He specifically pointed to two officers who in the last three years had received no disciplinary action, one of whom was allegedly promoted a year after his DUI offense. He further claimed that other officers who had lost the privilege to carry a firearm were given special assignments pending the return of their privileges.

Suspicious timing suggests retaliation. Also allowing his retaliation claim to proceed, the court rejected the defendants assertion that the timing of events prevented him from providing the requisite causal connection. Significantly, his termination occurred after he filed his EEOC charge and this lawsuit and although the defendants argued that his firing was unrelated to the EEOC charge and this litigation, the temporal proximity of the events was sufficiently “unusually suggestive” to support a causal link.

Monell claim tossed, for now. However, the court dismissed without prejudice the officer’s Monell claim against the city since he failed to plausibly allege a custom or policy which caused the alleged deprivation of constitutional rights. While “a policy or custom may be inferred where no rule has been announced as policy but federal law has been violated by an act of the policymaker itself,” the officer merely asserted that the police commissioner and the mayor were the city’s “final decision makers” and that their actions constituted adopted policies. This conclusory statement was insufficient.

Individual liability. Finally, the defendants failed to convince the court that the officer’s individual-capacity claims against the commissioner and mayor should be dismissed because they were “redundant” given that he alleged that they were acting in their official capacities, or that they were entitled to qualified immunity. Though government officials are shielded from liability when their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” at the time of the alleged incidents it was well-established law that public employers are not permitted to treat their employees differently based on sex or religion. It would also be premature to dismiss on these grounds before the parties engaged in discovery.

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