Discrimination by Association?

Court finds no protection for security guard who befriended gay doc

By a 2-1 vote, a federal appeals court in Cincinnati affirmed the dismissal of a federal sex discrimination case brought by a hospital security guard who claims he was harassed by co-workers after he befriended a gay doctor and then quit under fire.

Christopher Vickers, the guard, worked at a medical center in Lancaster, Ohio. What prompted the harassment is not clear in the July 19 opinions, but it appears that in the course of investigating a complaint against a gay doctor at the facility, Vickers befriended the doctor, leading his fellow officers to make “sexually based slurs and discriminating remarks and comments” about him, “alleging that Vickers was ‘gay’ or homosexual, and questioning his masculinity.”

After Vickers complained to management, he alleged that the center’s personnel department appeared ready to investigate him on a spurious charge. He quit and filed his lawsuit.

Rejecting Vickers’ detailed, 71-page complaint, a lower court judge granted the center’s motion to dismiss all claims under Title VII, the federal civil rights statute that forbids workplace sex discrimination, on the grounds that Vickers was harassed based on perceived sexual orientation, a class not covered by Title VII. Federal law does not ban sexual orientation discrimination in non-governmental workplaces.

In approving the lower court’s decision, Judge Julia Smith Gibbons and Judge Eugene E. Siler, Jr., rejected Vickers’ attempt to bring his case within the sphere of a long line of cases deriving from the U.S. Supreme Court’s 1989 ruling in Price Waterhouse v. Hopkins. In that case, a woman claimed to have been denied a partnership in the accounting firm because she was perceived as too masculine. The Supreme Court ruled that such sexual stereotyping was evidence of sexually discriminatory thinking.

Building on that case, courts have held that when an employee suffers discrimination at the workplace for failing to comply with gender stereotypes, the employee may have a claim of sex discrimination under Title VII. Over the past two years, the Sixth Circuit Court of Appeals has ruled that transgender employees are protected under Title VII because their appearance and behavior fails to conform to gender stereotypes.

Vickers argued that the numerous comments demeaning his masculinity, the name-calling, and the hostile physical pranks, should be considered sex discrimination under the same theory.

Rejecting this view, Gibbons noted that Vickers had not alleged that he was gender-nonconforming in any way and concluded that he was targeted because he was perceived to be gay.

“His claim fails because Vickers has failed to allege that he did not conform to traditional gender stereotypes in any observable way at work,” wrote Gibbons. “Thus, he does not allege a claim of sex stereotyping.”

“Ultimately,” Gibbons wrote, “recognition of Vickers’ claim would have the effect of de facto amending Title VII to encompass sexual orientation as a prohibited basis for discrimination. In all likelihood, any discrimination based on sexual orientation would be actionable under a sex stereotyping theory if this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.”

Federal courts have resisted efforts to have the existing sex discrimination ban liberally interpreted to cover all sexually-based harassment or discrimination.

Dissenting, Judge David M. Lawson argued that it was not appropriate for the court to have dismissed Vickers’ claim before he could conduct discovery to uncover any further evidence in company records that might support his sexual stereotyping claim.

Even without such discovery, Lawson said that Vickers’ complaint provided several instances of sex stereotyping behavior by his co-workers and his boss. Lawson said that the majority’s reading of the complaint “is too narrow and imposes an obligation on the plaintiff that is more exacting at this stage of the proceeding than is required by the Federal Rules of Civil Procedure.”

Lawson pointed out that after specifically making the sex stereotyping claim, Vickers “proceeds in excruciating detail to describe the vile and sexually explicit acts that allegedly were committed against him by [two] defendants and which allegedly were approved or condoned by [his supervisor]. . . .Where, as here, the plaintiff has pleaded facts from which a fact finder could infer that sex (and not simply homosexuality) played a role in the employment decision and contributed to the hostility of the work environment, drawing the line should not occur at the pleading stage of the lawsuit.”

Lawson found at least 25 different incidents contained in Vickers’ narrative that “could be construed as evidence of the defendants’ perception that Vickers was not masculine enough for them.”

Lawson concluded that even applying the legal reasoning of the majority, one would have to conclude that Vickers’ factual allegations were sufficient to withstand the motion to dismiss and entitle him to discovery and possibly a trial on his sex discrimination claim.