Are Certain Forms of Discrimination Based Upon Sexual Orientation Prohibited By Title VII?

Title VII

Title VII

Although federal law does not directly prohibit discrimination based upon sexual orientation, a recent decision from the Southern District Court of Florida illustrates how an employee may be able to state a claim under Title VII for discrimination based upon sexual orientation if the alleged discriminatory conduct was based upon the employee’s failure to conform to gender stereotypes.

In Anderson v. Napolitano, Case No. 09-60744 (S.D.Fla. Feb. 8, 2010), the Plaintiff, a former Federal Air Marshal, filed suit against the Secretary of the Department of Homeland Security alleging, among other things, sex discrimination on the basis of gender stereotyping in violation of Title VII of the Civil Rights Act of 1964.  The Plaintiff claimed that shortly after his transfer to the newly established Miami Field Office in late 2001, he began to suffer discrimination and harassment due to his sexual orientation.  In support, Plaintiff provided several examples of alleged harassment, including:

(1) that the acting-Special Agent in Charge publicly referred to him as a “fag” and encouraged coworkers not to associate with him;
(2) that “someone in the Miami Field Office had written the word `Fag’ on a grease board next to Anderson’s office”; and
(3) that on one occasion, the Special Agent in Charge denounced the Plaintiff for bringing to his attention a subordinate employees’ complaints of racial discrimination and then told the Plaintiff “It’s my perception, and I could be wrong — that because you’re gay you’re super sensitive to issues of discrimination.”  When the Plaintiff denied this characterization, he was told “You’re too gay. You’re too flamboyant. You’re too `in your face’ around other [Federal Air Marshals].”

The employer moved for summary judgment, claiming that the Plaintiff failed to state a claim under Title VII because these allegations related to harassment based upon sexual orientation, not harassment based upon sexual stereotyping.  The Court agreed, and granted summary judgment to the employer.  In doing so, the Court distinguished the facts of this case from another case recently decided where a plaintiff was able to successfully state a claim for gender discrimination, because the alleged discrimination was based upon the plaintiff’s “effeminate” mannerisms (including his high voice, he walked in an feminine manner, “did not curse and was very well-groomed,” and crossed his legs like a woman).  In contrast, the discrimination alleged by Plaintiff in this action did not relate to the Plaintiff’s failure to conform to gender stereotypes, but rather, his sexual orientation.  For example, the allegation that the Plaintiff’s supervisor referred to him as a “fag” and told him he was “too flamboyant” was clearly directed to the Plaintiff’s behavior as a gay man, not behavior associated with a woman.

Notwithstanding the Court’s decision, employers must recognize (1) that certain forms of discrimination based upon sexual orientation may also constitute discrimination based upon gender stereotyping.  In this case, slightly different facts or testimony could have resulted in a different result and the employer facing an expensive trial; and (2) although discrimination based upon sexual orientation is not currently prohibited by federal law (although Employment Non-Discrimination Act (“ENDA”) legislation which would prohibit such discrimination has continually been proposed in the U.S. Congress since 1994), state and/or local laws may prohibit such discrimination.  For example, although not prohibited by Florida law, discrimination based upon sexual orientation is prohibited by Illinois law.

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