Employment Law Daily ‘Too butch’ employee advances gender non-conformity—not sexual orientation bias—claim
Friday, November 17, 2017

‘Too butch’ employee advances gender non-conformity—not sexual orientation bias—claim

By Marjorie Johnson, J.D.

A credit union employee who was purportedly told her appearance was “too butch,” passed over for promotions due to her supervisor’s animus toward lesbians, and told that she didn’t believe in God since she was gay, plausibly alleged claims of gender non-conformity discrimination under Title VII and the Kentucky Civil Rights Act, but the federal court in Kentucky dismissed her sexual orientation discrimination claims. Her claims under a local ordinance prohibiting sexual orientation discrimination also failed because the ordinance did not create a private cause of action absent an agency notice that she had not received (Hudson v. Park Community Credit Union, Inc., November 13, 2017, Russell, T.).

Following her termination, the employee filed suit asserting that her employer unlawfully discriminated against her in violation of Title VII, the KCRA, and the Louisville-Metro Government Ordinance Section 92.06. Specifically, she alleged that throughout her 15-year tenure, she was “continually subject to harassment, disparate treatment and a hostile work environment due to her status as a gay woman.”

Among other incidents, she claimed she was told to change her appearance because she was “too butch” to deal with customers. She also claimed that her perceived sexual orientation was openly discussed with her coworkers. Furthermore, her supervisor allegedly passed her over for several promotions due to her supervisor’s animus toward lesbians and another supervisor commented that she didn’t believe in God since she was gay.

Sexual orientation bias not prohibited by KCRA or Title VII. The court dismissed her KCRA and Title VII claims to the extent she alleged sexual orientation bias, since neither statute prohibited that form of discrimination. Though the employee had argued that she was only alleging “gender stereotyping” under those statutes, her complaint specifically alleged that she was subjected to discrimination “based on sexual orientation and her perceived divergence from sexual stereotyping.”

Moreover, several of her allegations related solely to her sexual orientation. For instance, she claimed that she was repeatedly passed over for promotions “due to her supervisor’s animus towards lesbians,” that multiple employees and supervisors discussed her sexual orientation, and that there was only openly LGBT employee at the company during her 15-year tenure. These contentions all related directly to her sexual orientation. Therefore, though she alleged sex stereotyping, she equally alleged sexual orientation discrimination.

Gender-stereotyping bias. However, her KCRA and Title VII claims of gender stereotyping discrimination were cognizable pursuant to the U.S. Supreme Court’s Price Warehouse decision,

However, the Sixth Circuit has cautioned against allowing Title VII plaintiffs to “bootstrap” protection for sexual orientation “under the guise of a sex-stereotyping claim.” If the alleged harassment is more properly viewed as being based on the employee’s perceived homosexuality, rather than based on gender non-conformity, it is not legally cognizable.

“Too butch” comment. Therefore, the employee could only state a legally cognizable claim of sex discrimination under the KCRA and Title VII if her pleadings suggested that she experienced harassment or an adverse employment action based on alleged gender non-conformity in her appearance or mannerisms. Her allegation that she was asked to change her appearance because “she was ‘too butch’ to deal with customers” certainly qualified as the type of gender-nonconforming allegation recognized in Price Waterhouse. Moreover, she also alleged that she had overheard “her appearance and attire being discussed by her supervisors, which is why she believed that she had to change her appearance to keep her job and be promoted in her career.” These allegations, though scant, satisfied the requirement that she allege that she experienced adverse job consequences due to her perceived non-feminine appearance or mannerisms.

The employer argued that the “too butch” comment was insufficient to state a sex stereotyping claim, and that she failed to assert that she was subject to any adverse employment action due to her supposed gender non-conformity or treated differently than a similarly-situated female employee who did conform to gender norms. However, at this early stage of the proceedings, she was not required to plead a prima facie case of discrimination. Rather, she only needed to assert enough facts to give her employer “fair notice” of her claim.

Here, she asserted facts related to her perceived non-feminine appearance and she allegedly experienced discrimination and harassment. Thus, her complaint contained sufficient facts to make the reasonable inference that the employer discriminated against her because of her sex. Whether she could produce evidence of the alleged gender stereotyping would be more appropriately resolved on summary judgment. At this stage, whether her claims were based on gender stereotyping or sexual orientation was “a very fine line with the possibility of overlap.”

No private suit under local ordinance. However, the court dismissed her claim under the Louisville-Metro Government Ordinance, which barred employment discrimination based on sexual orientation. The Ordinance did not create a private right of action absent notification by the Human Relations Commission “that either party may elect to have their claims asserted in the complaint decided in a civil action” after “reasonable cause” was found by the Commission. Thus, even if her allegations were true, she was not authorized to file this claim.

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