Policing Gender Stereotyping 2019-11-08T10:15:56-07:00

Posted on November 8, 2019

A jury awarded a sergeant of the St. Louis County Police $19.9 million for his sexual orientation discrimination and retaliation claims in state court. Keith Wildhaber v. St. Louis County, Missouri, No. 17SL-CC00133 (Mo. Cir. Ct. 21st Cir. October 25, 2019). The plaintiff said the police department passed him over for promotion 23 times, and transferred him from his afternoon shift to an overnight shift at a precinct nearly 30 miles from his home. The plaintiff received “advice” from a Police Department board member to “tone down the gayness” in order to receive a promotion, and senior commanders referred to the plaintiff as “fruity.”

For the discrimination claim, the jury awarded $1.98 million in actual damages and $10 million in punitive damages. For his retaliation claim, the plaintiff received $999,000 in actual damages and $7 million in punitive damages. The County will likely appeal the damage award, but the jury’s message broadcasts loud and clear: discrimination based on gender stereotyping in today’s work environment is appalling.

The extraordinary damages award in Wildhaber is based on the U.S. Supreme Court decision on gender stereotyping in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Price Waterhouse passed over Ms. Hopkins for promotion and told her she needed to “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry.” The Court held that gender stereotyping is a form of sex discrimination.

Thirty years later, there is still a fight at the federal level to define sex discrimination under the law. On October 8, 2019, the Supreme Court heard three cases on the issue of whether sexual orientation and gender identity should be covered by the existing federal ban on “sex discrimination” under Title VII. These cases are Altitude Express v. Zarda, Bostock v. Clayton Cty., Ga, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. If the Supreme Court holds that it is lawful to discriminate against gay or trans workers, it could upend the 30-year-old rule against gender stereotyping.

5th Circuit Holds (Again) Title VII Does Not Protect Sexual Orientation; SCOTUS to Decide Ultimate Issue 2019-04-26T10:54:32-06:00

Posted on April 26, 2019

By Lindsay Hesketh

Last week, the Fifth Circuit held firm in its position that “Title VII in plain terms does not cover ‘sexual orientation.’” In a slightly different iteration, plaintiff sued her former employer alleging that defendant had discriminated against her because she identifies as heterosexual and retaliated against her after she opposed the alleged discrimination. The district court dismissed the plaintiff’s complaint for failure to state a claim under Title VII and other state laws. The Fifth Circuit affirmed.

While employers in multiple jurisdictions have been left to deal with the Circuit split on this issue, the Supreme Court recently announced that it would weigh in during its next term. On April 22, 2019, SCOTUS stated it would review cases from the Second, Sixth, and Eleventh Circuits, all of which concern whether Title VII prohibits discrimination based on sexual orientation.

O’Daniel v. Indus. Serv. Solutions, Case No. 18-30136 (5th Cir. April 19, 2019).

Second Circuit Rules Title VII Protects Sexual Orientation 2018-02-27T14:46:09-07:00

Posted on February 27, 2018

By Bill Wright

The Second Circuit joined the Seventh Circuit and the EEOC in ruling that Title VII protects individuals from discrimination based on sexual orientation. Zarda v. Altitude Express, Inc., No. 15-3775 (2nd Cir. February 26, 2018). The Second Circuit agreed with the Seventh that the law evolves. The court ruled that, even if the authors of Title VII never intended to protect people from discrimination based on sexual orientation, (a) the text of the statute says that employers may not discriminate “because of sex” and (b) discrimination on the basis of sexual orientation is, necessarily, logically, and as a result of “operationalizing” definitions, discrimination because of sex. The court relied on the EEOC’s 3 bases for its position – sexual orientation is defined by one’s sex, sexual orientation discrimination is sex stereotyping, and sexual orientation discrimination is discrimination based on a person’s association with others of the same sex.

The court’s opinion is laced with judicial views concerning the nature of law, the meanings of statutory terms, and the logic of relationships. Consequently, the issue seems headed for the Supreme Court, where we can expect a re-chopping of all its conclusions. In any case, the court took no position on whether statutory exceptions in Title VII or the Religious Freedom Restoration Act might immunize religious employers. So, we will see plenty more philosophical debate about sex in the lower courts too.

Sexual Orientation Discrimination Illegal 2017-04-04T17:23:53-06:00

Posted on April 4, 2017

By Bill Wright

The Seventh Circuit Court of Appeals is the first federal appellate court in the country to rule that Title VII already protects employees from discrimination because of sexual orientation. In every other case that has previously reached a federal court of appeals, the court has ruled the employee could proceed only on the basis of a sex stereotyping claim. Employees could claim that they were discriminated against because, as men, they were not sufficiently masculine, or as women, they were not sufficiently feminine. But employees had no claim for discrimination based on their status as homosexuals.

The Seventh Circuit took the narrowest possible path. It held that homosexuality is attraction to a person of one’s own sex and, therefore, discrimination because of sexual orientation is discrimination that only occurs because of one’s own biological sex. Or, to put it another way, sexual orientation is the sex of the person with whom the employee associates. Title VII has always made it illegal to discriminate against an employee because the employee’s friends and lovers are of a different race. Now, the same reasoning applies to sex.

The Supreme Court might yet take up this case, or another court’s ruling on the same issue. When it does, expect the argument to dwell on the Seventh Circuit’s comparison of sexual orientation discrimination to Constitutional issues the Supreme Court has already seen. Stay tuned. Hively v. Ivy Tech Comm. Col., No. 15-1720 (7^th Cir. April 4, 2017).

Sexual Orientation: Status Or Conduct? 2017-03-14T16:16:39-06:00

Posted on March 14, 2017

By Bill Wright

In Evans v. Georgia Regional Hosp. et al., No. 15-15234 (11^th Cir. March 10, 2017), the panel of three Court of Appeal judges produced three opinions. Two of the judges argued amongst themselves over a point of legal analysis. One judge maintained that Title VII does not protect people from discrimination based on their “status” as a homosexual, but from discrimination based “conduct” by which the person shows he or she varies from gender stereotypes. The other judge maintained that, when an employer discriminates against a person for being sexually attracted to people of the same biological sex, that is necessarily discrimination because the person does not conform to a gender stereotype.

It is a distinction without a difference. To prevail on a gender stereotyping claim, the plaintiff has to show the decision-maker somehow knew the plaintiff failed to conform to the gender stereotype. Once the plaintiff alleges a basis for the claim, the analytical point evaporates. The battle yet to come for these two judges is over discrimination based on a false belief that the plaintiff varies from gender stereotypes.

The panel of judges reached a decision because the third judge, a District Court judge sitting by designation, argued that current precedent dictated the result. In the end, the case was remanded so the plaintiff could plead more facts about gender stereotyping. We should expect more philosophizing to come.

Georgia RFRA Vetoed 2016-03-28T09:36:51-06:00

Posted on March 28, 2016

By Bryan Stillwagon

At a press conference this morning, Georgia Governor Nathan Deal announced that he will veto HB 757, the “Free Exercise Protection Act” that Georgia’s legislature passed less than two weeks ago. Deal has faced intense pressure from Georgia’s business community, which warned of the severe economic consequences that would follow passage of a bill that appears to permit LGBT discrimination. Deal proclaimed that “Georgia is a welcoming state” that does not need to discriminate against anyone to protect religious liberty.

GA “Free” Exercise 2016-03-21T17:54:39-06:00

Posted on March 21, 2016

By Bryan Stillwagon

On Wednesday, the Georgia legislature passed the “Free Exercise Protection Act” (HB 757), which combines aspects of a proposed Pastor Protection Act and Religious Freedom Restoration Act. Many Atlanta-based companies and industry groups oppose the bill and have urged Governor Nathan Deal to veto it.

Sponsors claim the bill is necessary to protect religious freedom and “faith based organizations.” Opponents, however, argue the First Amendment already provides the necessary protections, and that the bill opens the door to discrimination in social services and employment against LGBT people. Although the bill states it shall not permit discrimination “on any grounds prohibited by federal or state law,” opponents claim the bill could undermine local non-discrimination ordinances that protect LGBT people, will create an “Indiana-style backlash” from corporations and organizations, and will negatively impact the state’s tourism and convention industries. Regardless of the bill’s legal effect if signed by the Governor, the negative media attention many hoped to avoid has already begun.

Groundbreaking Discrimination Lawsuits 2016-03-02T10:35:00-07:00

Posted on March 2, 2016

By Joe Hunt

The EEOC filed two lawsuits yesterday alleging – for the first time – that discrimination on the basis of sexual orientation violates Title VII. As you know, sexual orientation is not expressly protected under Title VII, so these suits mark the EEOC’s expansive interpretation of its statutory authority.

One EEOC complaint, filed in Pennsylvania federal court, alleges discrimination against a male employee because of his sexual orientation, and the second complaint, filed in Maryland federal court, alleges discrimination against a female employee because of her sexual orientation. Each complaint alleges the relevant employer subjected the employee to homophobic epithets and other offensive remarks about the employee’s sexual orientation.

The EEOC’s underlying rationale for these lawsuits is that an employer’s harassing conduct of an employee based on his or her sexual orientation is inherently discrimination based on sex. The EEOC argues that the employer’s unlawful conduct is motivated by an employee’s sex by virtue of his or her non-compliance with sex stereotypes or heterosexually defined gender norms. The Pennsylvania complaint can be found here and the Maryland complaint here.