Employment Law Daily No dismissal: Viability of sexual orientation bias claim under Title VII is ‘open’ question
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Friday, June 24, 2016

No dismissal: Viability of sexual orientation bias claim under Title VII is ‘open’ question

By Brandi O. Brown, J.D. Refusing to dismiss the sexual orientation discrimination claims of two female EMTs, a federal district court in Florida found that the question of whether the claims are cognizable under Title VII is still "an open one." One of the employees alleged she was harassed and constructively discharged based on her perceived sexual orientation after a coworker and her associate incited clients to complain about the employees and a county commissioner suggested females should not work together. The employees’ sex discrimination claims also survived (Winstead v. Lafayette County Board of County Commissioners, June 20, 2016, Walker, M.). Incitement of complaints. Both employees had worked as EMTs for many years and had worked together for a long period of time. Before mid-2012 neither received complaints about their work. In mid-2012, however, a part-time coworker began contacting residents who had received services from the employees and encouraged them to make complaints. At around the same time, an associate of the coworker began making negative comments about the employees on Facebook, in other internet posts, and on radio and television. Although the department director suggested to the Board of Commissioners that it make public statements in support of the employees pending investigation of the complaints, the Board did not do so. One EMT quits. According to the employees, this decision was largely because of one commissioner. That commissioner later suggested that the employees be split up, offering his opinion that two women should not work together. According to the employees, he and others harassed them because of their gender and one employee’s perceived sexual orientation. The same commissioner, they alleged, made visits to the workplace in order to harass them and threatened to fire them. The employees alleged that the Board allowed his behavior and even encouraged it. Eventually, one of the employees suffered a breakdown and left the job. The employees alleged that this constituted a constructive discharge. They filed suit and the Board moved for dismissal of two of the counts. Is sexual orientation protected? The employer argued that actual and perceived sexual orientation is not a protected classification under Title VII. Most notable amongst the "litany of case law" cited by the employer was the Eleventh Circuit's decision in Fredette v. BVP Management Associates, but it was not controlling. Although some other courts have interpreted it differently, the court here concluded that the Eleventh Circuit in Fredette did not actually rule on the issue of sexual orientation discrimination, thus leaving it an "open" question. To answer this question, the court reviewed other decisions. On the one hand, several courts have found sexual orientation discrimination claims cognizable under the federal law as "necessarily" constituting sex discrimination. Those courts held to the notion that sexual orientation could not be understood without sex as the reference point. While that analytic approach had "a great deal of surface appeal" the court here found it flawed because provided no "theoretical basis for protecting bisexuals from discrimination" and did not "tie the proscription on discrimination to animus based on an employee’s gender or failure to conform to gender stereotypes." In the court’s view, a more convincing theory was that sexual orientation "falls under the category of gender stereotype discrimination." The Eleventh Circuit endorsed the stereotype theory in Glenn v. Brumby, a 2011 case dealing with discrimination against a transgender or transsexual employee. Although other circuit courts had placed some limitations on the stereotype theory, the arguments used seemed to "misapprehend the nature of animus towards people based on their sexual orientation, actual or perceived." At its center, that animus was "based on disapproval of certain behaviors (real or assumed) and tendencies towards behaviors, and those behaviors are disapproved of precisely because they are deemed to be 'inappropriate' for members of a certain sex or gender." Sexual attraction towards a member of the same sex contradicted traditional notions about each gender's behavior, the court explained. Finding that view persuasive, the court denied the employer's motion to dismiss this claim. Sex discrimination claim also proceeds. According to the defendant the employees also failed to state a plausible claim of gender discrimination. Although "close to the line" under Rule 8, and suffering from a "dearth of detail" regarding what the alleged discriminatory acts were, the employees' allegations were sufficient to the court. All the employees had to do, the court explained, was "allege enough factual information to give fair notice to the Board as to what Plaintiffs’ claim is, and what events the claim pertains to." They passed that bar. Alternatively, the court added, there was another basis for denying the motion. The challenged count was "merely a theory" of a claim that was repeated in the third count, which the defendant had not challenged. That failure to challenge the alternate theory of the same claim under the third count of the complaint also would have led the court to deny the motion.

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