Courts divided over Title VII's impact in LGBT cases
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Lori Franchina worked as a firefighter for Providence, Rhode Island, and for four years, everything was fine. Then one day, she was paired up with a male worker notorious for sexually harassing female colleagues. The male worker immediately began harassing Franchina, constantly offering to have sex with her and openly taunting her as a lesbian in front of other fire personnel, hospital workers, and members of the public.
Franchina told a superior officer about the incidents, and the superior compelled her to report them, triggering a disciplinary hearing against the male co-worker. But soon after that, other male firefighters began harassing Franchina. One put something in her food on several occasions that made her severely ill; others deliberately sabotaged her rescue equipment and disobeyed orders she gave them in ways that put lives of the public in jeopardy. One firefighter, who was wearing latex gloves soiled by blood and brain matter from a suicide victim, put his hands in front of Franchina's face and snapped them off in a way that caused the victim's body fluids to fly into her eyes and mouth.
After that incident, Franchina was diagnosed with severe post-traumatic stress, but she fought back, filing a complaint and, eventually, a lawsuit, charging the fire department had violated Title VII's federal prohibitions against sex discrimination and against retaliation for complaining of sex discrimination.
One judge described Franchina's story as a particularly "horrific" one, but there are many more like hers. Some are known because the victims of discrimination filed lawsuits. All of them, including Franchina, tried to seek protection under Title VII by arguing that the discrimination they suffered because of their sexual orientation is prohibited discrimination based on "sex."
Most of the lawsuits have been from lesbians, but some have been from gay men. There was the lesbian school probationary officer in Texas whose male supervisor told her she "looked gay" and was "not as feminine as other women" employees (Carr v. Humble). There was the gay man in North Carolina whose employer fired him after he brought his same-sex partner to a company lunch (Snyder v. Ohio Electronics). There was the lesbian employee of an assisted living facility whose male supervisor repeatedly made lewd and sexually offensive remarks to her about her being gay (Stevens v. University Village). There was the lesbian teacher, Jira Churchill, in a Maryland public high school, who found the slur "FAG" written on her chalkboard, had students refer to her as Mister Churchill, and was removed from her teaching job because she was deemed "aggressive" (Churchill v. Prince George's). And there is the lesbian shift manager at a McDonald's fast food restaurant in Alabama whose supervisor repeatedly told her, even in front of customers, that she walked like a man and needed to look more feminine (Whitt v. Berckman's).
Franchina and these others all tried to get relief by filing lawsuits in federal court, arguing that Title VII of the U.S. Civil Rights Act of 1964 prohibits the kind of adverse treatment they suffered because they are gay or perceived to be gay.
Title VII is a section of the Civil Rights Act that prohibits employers from taking adverse action against an employee or potential employee "because of such individual's race, color, religion, sex, or national origin." Since the 1970s, lawsuits for LGBT people have tried to convince the courts that the language "because of ... sex" should be read to include "because of ... sexual orientation."
Heterosexuals, too, have filed lawsuits using this argument.
In 1996, in Charlotte, North Carolina, a 16-year-old heterosexual male newly employed by Pizza Hut, filed a Title VII claim that his gay male co-workers sexually harassed him and made repeated sexual advances and vulgar remarks intended to humiliate him. In Alabama, a heterosexual female teacher said she suffered retaliation at Talladega College after she complained about a "Teaching Tolerance" program that she said actively promoted the "gay agenda." And in Georgia, a newly hired motel clerk lost his job because his supervisor perceived him to be gay.
None of these lawsuits succeeded on the grounds that "sexual orientation" discrimination is a type of "sex" discrimination. Most were dismissed and haven't been appealed.
In Franchina's case, a jury agreed she had suffered discrimination under Title VII, but the city appealed. Providence argued that, for Franchina's sex discrimination complaint to stick under Title VII, the court would have to determine whether a gay male firefighter would have been treated differently than a gay female firefighter. Otherwise, the city argued, the discrimination Franchina faced was not because of "sex" but because of "sexual orientation." And sexual orientation, argued the city, is not covered under Title VII.
Long fight, slow change
"Initially, the courts, which reflected the widespread homophobia in society at the time, rejected [Title VII sexual orientation lawsuits] out of hand without really giving them serious thought or consideration," said Christopher Stoll, senior staff attorney for the National Center for Lesbian Rights. "So, for a long time, we were stuck with bad precedents in most places and had no real chance of persuading the courts to reconsider them."
Some courts, recalled Jenny Pizer, law and policy director for Lambda Legal Defense and Education Fund, said "Congress couldn't possibly have meant to protect homosexuals and transsexuals when they passed the CRA in 1964 ..."
Both Pizer and Stoll said things really began to change in 1989, when the U.S. Supreme Court issued a decision in Price Waterhouse v. Hopkins. The case did not involve a lesbian but a female employee at the accounting giant Price Waterhouse. The employee, Ann Hopkins, was rejected for partnership because some the top officials at the firm considered her too masculine and advised her she needed to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." The Supreme Court majority said Price Waterhouse's refusal to promote Hopkins was based on her sex and "motivated by stereotypical notions about women's proper deportment."
"Plaintiffs then began to make the same arguments about sexual orientation," said Stoll. "After all, the idea that men should only be attracted to women and vice versa is about as clear a gender stereotype as there is."
Then, in 1998, the Supreme Court made another important ruling: saying Title VII's prohibition against sex discrimination, including through sexual harassment, could be used to protect an employee from sexual harassment by an employee of the same sex (Oncale v. Sundowner).
"The Oncale decision in 1998 also seemed like an important analytical tool in a changing landscape that ought to help us," said Pizer.
But it wasn't until April 2017 that any federal appeals court agreed that Price Waterhouse and Oncale logically meant that Title VII's language on sex discrimination should include sexual orientation discrimination.
"Price Waterhouse held that the practice of gender stereotyping falls within Title VII's prohibition against sex discrimination, and Oncale clarified that it makes no difference if the sex of the harasser is (or is not) the same as the sex of the victim," said the 8-3 majority decision in Hively v. Ivy Tech from the 7th U.S. Circuit Court of Appeals. Because the lower court had dismissed the case, the appeals decision sent it back for deliberation on the merits of lesbian employee Kimberly Hively's discrimination complaint.
That Hively decision came just one month after a three-judge panel of the 11th Circuit ruled, in a similar case (Evans v. Georgia Regional) that Price Waterhouse and Oncale were not "clearly on point" and that it had to abide by an earlier decision in that circuit that said, "Discharge for homosexuality is not prohibited by Title VII."
Thus, there came into being a conflict between two federal appeals courts. LGBT legal activists were hopeful that this difference of opinion might compel the Supreme Court to settle the matter.
"There's just too much confusion in the lower courts," said Gary Buseck, legal director for GLBTQ Legal Advocates & Defenders.
But Ivy Tech Community College did not appeal to the Supreme Court, and the case is still before a district court on the merits of Hively's claims. When Lambda Legal appealed the 11th Circuit decision in Evans to the U.S. Supreme Court, the high court simply declined to look at it. That postpones any national resolution of the Title VII sexual orientation issue until a later date.
But change is coming
That later date is almost certainly coming, as more and more Title VII sexual orientation cases are pressed and reach other federal appeals courts.
In February of this year, in a 10-3 majority decision in Zarda v. Altitude Express, the full appeals bench of the 2nd Circuit ruled that "sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination."
"Because one cannot fully define a person's sexual orientation without identifying his or her sex, sexual orientation is a function of sex," wrote the court. "... Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected."
With those rulings from the 2nd and 7th circuits, LGBT people in the states covered by those rulings can seek relief from Title VII. The states are New York, Connecticut, and Vermont (in the 2nd); and Illinois, Indiana, and Wisconsin (in the 7th).
Claims in other circuits are advancing.
Just this month, Lambda Legal took another Title VII sexual orientation case (Horton v. Midwest Geriatric) to the 8th Circuit (covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota).
And though Franchina, the Providence firefighter, did not succeed with her Title VII sexual orientation claim in the 1st Circuit courts, she still won her trial and the appeal on her sex discrimination and retaliation claims. In a footnote that caught many LGBT legal activists' attention, the panel suggested the "tide may be turning when it comes to Title VII's" protection against sexual orientation discrimination.