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11th Circuit Panel Splinters Over Lesbian’s Appeal of Title VII Dismissal

Posted on: March 12th, 2017 by Art Leonard No Comments

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit issued a divided ruling on March 10 holding that a lesbian plaintiff suing for discrimination under Title VII of the Civil Rights Act of 1964 could file an amended complaint alleging that she suffered discrimination because of sex stereotyping, but upholding the district court’s dismissal of her claim that sexual orientation discrimination violates the statute.  A dissenting judge, agreeing with the Equal Employment Opportunity Commission (EEOC), which submitted an amicus brief in the case, and Lambda Legal, which was appointed to represent the plaintiff on appeal, argued that the plaintiff should be allowed to pursue her sexual orientation discrimination claim as well.  Lambda Legal, representing the appellant, immediately announced that it would petition for rehearing “en banc” before the entire 11th Circuit bench.

Unsurprisingly, the judges rejecting the sexual orientation claim, Circuit Judge William Pryor and Florida District Judge Jose Martinez, were appointed by President George W. Bush.  The dissenter, Circuit Judge Robin Rosenbaum, was appointed by President Barack Obama.

This case is one of appeals recently argued in three different federal circuits presenting the question whether sexual orientation discrimination claims are covered as “discrimination because of sex” under Title VII.  The Chicago-based 7th Circuit heard argument “en banc” on November 30, and the New York-based 2nd Circuit heard three-judge panel argument in two different appeals in January. So far, no federal circuit court has ruled favorably on such a claim, although many have ruled that gay plaintiffs can sue under Title VII on gender-based sex stereotyping claims, depending on their factual allegations.  There are older court of appeals precedents in most circuits rejecting sexual orientation discrimination claims, as such, under Title VII.  The Supreme Court has never directly ruled on the question.

In this case, Evans v. Georgia Regional Hospital, plaintiff Jameka Evans claimed that she was discriminated against in her position as a security officer at the hospital because of both gender non-conformity and sexual orientation.  Evans is a “butch” lesbian who claims she was discriminated against because she failed to carry herself in a “traditional womanly manner” and that “it was ‘evident’ that she identified with the male gender, because of how she presented herself – ‘(male uniform, low male haircut, shoes, etc.’),” wrote Judge Martinez.

She filed her case in federal district court in Savanah, Georgia, without a lawyer (“pro se”). The district judge, J. Randal Hall, referred her case to a magistrate judge to rule on procedural issues and “screen” the claim, as is usually done with “pro se” cases.  Magistrate Judge George R. Smith found procedural problems and, applying old circuit precedent, held that the claim of sexual orientation discrimination could not be brought under Title VII.  Smith recommended dismissal of the case. Lambda Legal submitted an amicus brief, urging Judge Hall to reject the Magistrate’s recommendation, but Hall dismissed without reference to Lambda’s arguments.  However, Hall then appointed Lambda to represent Evans on appeal to the 11th Circuit, and Gregory Nevins from Lambda’s Atlanta office argued the appeal.  The hospital never responded to the complaint and was not represented at the one-sided argument before the court of appeals.

At the heart of this appeal and of the other pending cases on the same question is the effect of two Supreme Court rulings, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services. In the first of these, the Court ruled that an employer’s denial of a partnership to a woman because of her failure to conform to the employer’s stereotyped view of how women should behave and present themselves was evidence of discrimination “because of sex” in violation of Title VII.  In the second, the Supreme Court overturned the lower court’s dismissal of a same-sex harassment case in a unanimous opinion authored by Justice Antonin Scalia holding that the interpretation of discrimination “because of sex” was not limited based on the intentions of Congress when it enacted the statute in 1964.  Scalia commented that “comparable evils” to those that Congress sought to address might be covered by the statute, and that we are governed by the language of our statutes as adopted by Congress, not by the presumed intentions expressed by individual legislators or committees as reflected in the legislative history.  Thus, a claim by a man that he was subjected to sexual harassment by male co-workers could be dealt with under Title VII, even if members of Congress did not anticipate or intend that such cases could be brought under Title VII.

LGBT rights advocates have used these two Supreme Court cases to argue that gay and transgender plaintiffs who suffer discrimination because of their sexual orientation or gender identity should be able to bring sex discrimination claims under Title VII. Sex stereotyping is arguably present to some extent in all such cases and, at a more fundamental level, anti-gay and anti-trans discrimination is “necessarily” because of sex.  These arguments persuaded the EEOC during the Obama Administration, resulting in administrative rulings in cases raised by LGBT federal employees, and have also persuaded some federal district judges.  Several federal courts of appeals have accepted the sex stereotyping argument, but only to a limited extent, according to the extensive concurring opinion in Evans’s case by Judge Pryor.  So far, no federal circuit court has accepted the argument that an otherwise gender-conforming gay person can bring a sex discrimination claim under Title VII.

Judge Martinez premised his vote to reject the sexual orientation discrimination claim on a 1979 decision by the 5th Circuit, Blum v. Gulf Oil Corporation, 597 F.2d 936, in which that court said that “discharge for homosexuality is not prohibited by Title VII” as an alternative basis for its ruling.  Effective on September 30, 1981, a statute divided the old 5th Circuit in half, assigning Georgia to the newly-created 11th Circuit. At that time, the 11th Circuit ruled that former 5th Circuit cases would be treated as precedent in the new 11th Circuit, so this case counts as a binding circuit precedent.  Lambda argued that the 1979 ruling is no longer valid in light of the 1989 Price Waterhouse decision and the 1999 Oncale decision.  Martinez and Pryor both rejected that argument, but dissenting Judge Rosenbaum embraced it.  At the oral argument, Judge Pryor had observed that in light of the Blum precedent, the three judge panel most likely could not rule in favor of Evans on this point, as only an en banc panel could reverse circuit precedents.

As to the sex stereotyping claim, Martinez asserted that Evans’ pro se complaint “failed to plead facts sufficient to create a plausible inference that she suffered discrimination. In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.”  However, he wrote, it was inappropriate for the district judge to dismiss her case outright rather than allowing her to file an amended complaint, since her theory of sex stereotyping discrimination was a theory accepted in the 11th Circuit and it was possible that, in light of the court’s discussion of her claim, she might be able to meet these pleading deficiencies in an amended complaint.  It is customary in pro se cases to allow the plaintiff to file an amended complaint if she is asserting a claim under a valid legal theory and there is a possibility that a better framed complaint could survive screening.

Pryor’s concurring opinion agreed that the magistrate erred in asserting that a sex stereotyping argument by a lesbian plaintiff was just “another way to claim discrimination based on sexual orientation,” and thus Evans should get a second chance to frame a complaint that might survive review. However, he argued at length to refute the arguments by the EEOC and Judge Rosenbaum that sexual orientation discrimination claims were “necessarily” sex discrimination claims.  Pryor insisted on a strict distinction between “status” and “conduct,” arguing that sex stereotyping claims were tied to the plaintiff’s conduct in failing to conform to gender stereotypes.  Thus, a claim of sexual orientation discrimination not accompanied by factual allegations about the plaintiff’s gender non-conformity fell short, in his view, of coming within the compass of discrimination “because of sex.”  He was not willing to accept the argument that being sexually attracted to members of the same-sex would suffice to constitute non-conformity with sexual stereotypes.

Judge Rosenbaum took a diametrically opposite approach, embracing a theoretical description of how Price Waterhouse had changed Title VII law by extending prior sex stereotyping cases to adopt a “prescriptive stereotyping” model. In prior cases, the Supreme Court had condemned “ascriptive stereotyping,” situations where an employer discriminated against a class of employees because of a stereotype about the class.  For example, an employer required women to contribute more to its pension plan than men in order to get the same monthly benefits upon retirement, based on the stereotype that women live longer than men so it would all “even out” in the end.  The Supreme Court condemned this practice as sex discrimination, finding that the statute protects individuals from being treated based on class-based stereotypes.  In Price Waterhouse, the Court for the first time condemned “prescriptive stereotyping,” where an employer discriminated against an employee because she failed to conform to a sexual stereotype, presenting a demeanor which was not traditionally feminine.

Applying this to the sexual orientation case, Rosenbaum accepted the argument that in such cases the employer was discriminating because the employee violated the stereotypical view that men are supposed to be attracted to women, not to men, and vice versa. Furthermore, she found that it was clearly sex discrimination to treat a woman differently based on whether she was attracted to men or women.

Judge Rosenbaum argued that Pryor’s opinion was “at war” with his vote a decade ago that allowed a sex discrimination claim under the Equal Protection Clause by a transgender employee of the Georgia legislature. Indeed, Pryor’s vote in the former case, Glenn v. Brumby, had given the plaintiff hope in this case that the panel might rule in her favor.  Pryor devoted considerable effort in his concurring opinion to explaining why he found this case to be different, once again relying on the “status” and “conduct” distinction.  Cross-dressing and announcing plans to transition were “conduct,” in his view, while having a sexual orientation was “status.”  He argued that sex stereotyping theory was concerned with conduct, not status, in its focus on gender non-conformity.

The sharp division among the judges may lead the 11th Circuit to agree to hear the case en banc, especially noting that one member of the panel was a district judge.  The federal judiciary is so short-handed as a result of the Republican-controlled Senate’s stonewalling of President Obama’s court of appeals nominees during his second term that it has become increasingly common for some particularly short-staffed circuits to fill-out three-judge panels by “designating” district court judges to provide the third member to make up a panel.  These district judges do not participate if the case is reargued en banc.  Furthermore, with the 7th Circuit having held en banc argument on this question recently, it seems clear that many federal judges believe it is time to reconsider the issue.  Meanwhile, decisions from the 7th and 2nd Circuits are eagerly awaited, especially if they create a “circuit split” that would entice the Supreme Court to agree to take up the issue.

N.Y. Federal Judge Refuses to Remand Sexual Orientation Discrimination Claim to State Court

Posted on: February 28th, 2016 by Art Leonard No Comments

Elizabeth Koke filed an action in New York State Supreme Court against the City University of New York, The Feminist Press and its executive director, Jennifer Baumgardner, alleging that she suffered unlawful employment discrimination because of her gender and actual or perceived sexual orientation in violation of Title VII and the New York State and City Human Rights laws, and also asserting other state law claims. CUNY, “with the consent of the other defendants,” removed the case to federal district court, where it was assigned to U.S. District Judge Lewis Kaplan (S.D.N.Y.). Removal was grounded on the inclusion of a Title VII claim, which gives the federal district court “original jurisdiction.”  Koke then moved to remand the case back to state court, unless Judge Kaplan was willing to issue a declaratory judgment that her “Title VII claims of discriminatory treatment are valid and that Title VII is applicable to this matter.”  Koke v. Baumgardner, 2016 U.S. Dist. LEXIS 1979, 2016 WL 93094 (Jan. 5, 2016).  Judge Kaplan refused to remand the matter.

Kaplan’s opinion does not mention any of the particulars of Koke’s discrimination charges, focusing primarily on the issue of sexual orientation discrimination under Title VII. The 2nd Circuit ruled in Simonton v. Runyon, 232 F. 3d 33 (2000), that sexual orientation discrimination claims  are not actionable under Title VII, but that claims of discrimination against a plaintiff because she fails to conform to sex stereotypes could be actionable as sex discrimination claims under that statute.  Judge Kaplan took note of the EEOC’s decision last summer in the Baldwin case (2015 WL 4397641, 2015 EEOPUB LEXIS 1905 (July 16, 2015)) that “sexual orientation is inherently a sex-based consideration,” thus rendering all sexual orientation discrimination cases actionable under Title VII.  Of course, as a district judge within the 2nd Circuit, Kaplan is bound by Simonton and may not recognize Koke’s sexual orientation discrimination claim as actionable unless the case presents sex stereotype issues, regardless of what the EEOC has said, until such time as the 2nd Circuit changes its position or the Supreme Court definitively pronounces on the issue.

“It remains to be seen,” he wrote, “whether plaintiff has stated, or can prove, a Title VII claim related to her professed sexual orientation, given that she probably cannot state a legally sufficient Title VII claim based on sexual orientation alone absent a change in law.  But even if she has not and cannot plead or make out such a claim, this would be a case over which the federal courts ‘have original jurisdiction’ for two reasons.  First, plaintiff sues under Title VII.  The jurisdictional inquiry, which is the critical point with respect to removability, is distinct from whether a complaint states a legally sufficient claim for relief except where the complaint is ‘wholly insubstantial and frivolous.’  In other words, a complaint purporting to allege a federal claim is one over which a district court has subject matter jurisdiction unless ‘the federal right claimed in a complaint is insubstantial, unsubstantiated, or frivolous.’  Given the door left ajar by Simonton for claims based on ‘failure to conform to sex stereotypes,’ the EEOC’s recent holding that Title VII prohibits discrimination on the basis of sexual orientation, and the lack of a Supreme Court ruling on whether Title VII applies to such claims, I cannot conclude, at least at this stage, that plaintiff’s Title VII claim is ‘wholly insubstantial and frivolous.’  While it may be that the Title VII claim will not survive the rigors of further testing, even to whatever extent it relates to sexual orientation on a theory of non-conformity to sexual stereotype, it nevertheless arises under the laws of the United States.”  The second point, of course, is that Koke also alleged discrimination because of gender in her complaint, and that claim clearly arises under Title VII.

Kaplan also rejected the suggestion that this was an appropriate case to decline jurisdiction over the state and local law claims, pointing out that all the claims arose out of the same nucleus of operative facts and that the anti-discrimination provisions of the federal, state and local laws substantially overlap, at least as to sex discrimination, keeping in mind the requirement to give a more liberal construction to the NY City Human Rights law than to the state or federal laws in light of a particular provision requiring that in the city ordinance.

This opinion by Judge Kaplan is quite interesting for anybody trying to track the potential impact of the EEOC’s ruling last summer. Since a majority of the states still do not ban sexual orientation discrimination expressly in their state anti-discrimination laws and Congress is unlikely to enact the pending Equality Act (which would add “sexual orientation and gender identity” to Title VII) within the foreseeable future, the availability of relief from such discrimination under Title VII could be quite valuable in those states in cases involving employers large enough to be subject to Title VII (at least 15 employees).  Furthermore, were federal courts to fall in line solidly behind the EEOC’s conclusion that sexual orientation is necessarily sex discrimination, this might lead to more expansive interpretation of state law bans on sex discrimination in the jurisdictions that don’t expressly include sexual orientation in their statutes.

Koke is represented by Erica Tracy Kagan, The Kurland Group, New York City. CUNY is represented by Steven Leon Banks of the State Attorney General’s Office.  Baumgardner and the Feminist Press are represented by Bertrand B. Pogrebin and Adam Jeremy Roth of Littler Mendelson PC, also of New York City.

Federal Court Refuses to Dismiss Sexual Orientation Discrimination Claim Under Title IX

Posted on: December 16th, 2015 by Art Leonard No Comments

United States District Judge Dean D. Pregerson ruled on December 15 that two students at Pepperdine University could sue the school for sexual orientation discrimination under Title IX, a federal statute that prohibits sex discrimination by educational institutions that receive federal money.  Videckis v. Pepperdine University, 2015 U.S. Dist. LEXIS 167672 (C.D. Calif.).  The ruling rejecting the school’s motion to dismiss the discrimination claims advanced by Haley Videckis and Layana White is the first under Title IX to acknowledge the Equal Employment Opportunity Commission’s ruling last summer that sexual orientation discrimination claims should be treated as sex discrimination claims under Title VII, the analogous federal law that bans sex discrimination in the workplace.

Videckis and White are former members of the Pepperdine women’s basketball team.  Their lawsuit “arises out of allegedly intrusive and discriminatory actions that Pepperdine and its employees committed against Plaintiffs on account of Plaintiffs’ dating relationship,” wrote Judge Pregerson.  They allege that “in the spring of 2014, Coach Ryan [Weisenberg] and others on the staff of the women’s basketball team came to the conclusion that Plaintiffs were lesbians and were in a lesbian relationship.  Plaintiffs further allege that Coach Ryan and the coaching staff were concerned about the possibility of the relationship causing turmoil within the team.  Plaintiffs allege that, due to their concerns, Coach Ryan and members of the coaching staff harassed and discriminated against Plaintiffs in an effort to force Plaintiffs to quit the team.”

Pepperdine’s motion to dismiss the lawsuit argued that Title IX does not apply to sexual orientation discrimination claims, that the plaintiffs’ allegations would not support a sex discrimination claim based on “gender stereotype discrimination,” and that the Title IX claims “should be dismissed because they are uncertain and not legally cognizable.”  The school argued that the plaintiffs’ retaliation claim under Title IX should be rejected as well. The school also appeared to be arguing that since the women had been secretive about their relationship, they could not mount a sexual orientation discrimination or retaliation claim against the school.

Judge Pregerson had previously dismissed in part the plaintiff’s’ first amended complaint, stating then that “the line between discrimination based on gender stereotyping and discrimination based on sexual orientation is blurry, at best.”  At this point in the lawsuit, the plaintiffs have amended their complaint to include more factual allegations and legal arguments, so Pepperdine’s motion is actually addressed to their third amended complaint.  “After further briefing and argument,” wrote Pregerson, “the Court concludes that the distinction is illusory and artificial, and that sexual orientation discrimination is not a category distinct from sex or gender discrimination.  Thus, claims of discrimination based on sexual orientation are covered by Title VII and IX, but not as a category of independent claims separate from sex and gender stereotype.  Rather, claims of sexual orientation discrimination are gender stereotype or sex discrimination claims.”

After noting prior decisions by other federal courts pointing out the difficulties of line-drawing in terms of classifying such discrimination claims, Pregerson wrote, “Simply put, the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist, save as a lingering and faulty judicial construct.”  He pointed out that the 9th Circuit Court of Appeals, whose rulings are binding on the federal district courts in California, had ruled in sexual harassment claims that gay men could bring such claims under Title VII, regardless of their sexual orientation, and that “the cases upon which Pepperdine relies, for the most part, dismiss analogous sexual orientation-based claims in a cursory and conclusory fashion.  The Court rejects the reasoning of these cases, which do not fully evaluate the nature of claims based on sexual orientation discrimination.”

He continued, “In sexual orientation discrimination cases, focusing on the actions or appearance of the alleged victim of discrimination rather than the bias of the alleged perpetrator asks the wrong question and compounds the harm.  A plaintiff’s ‘actual’ sexual orientation is irrelevant to a Title IX or Title VII claim because it is the biased mind of the alleged discriminator that is the focus of the analysis.  This is especially true given that sexuality cannot be defined on a homosexual or heterosexual basis; it exists on a continuum.  It is not the victim of discrimination who should be forced to put his or her sexual orientation on trial.  We do not demand of a victim of alleged religious discrimination, ‘Prove that you are a real Catholic, Mormon, or Jew.’  Just as it would be absurd to demand that a victim of alleged racial discrimination prove that he is black, it is absurd to demand a victim of alleged sex discrimination based on sexual orientation prove she is a lesbian.  The contrary view would turn a Title IX trial into a broad inquisition into the personal sexual history of the victim.  Such an approach should be precluded as not only highly inflammatory and offensive, but also irrelevant for the purposes of the Title IX discrimination analysis.”

Pregerson concluded on this point that it “is impossible to categorically separate ‘sexual orientation discrimination’ from discrimination on the basis of sex or from gender stereotypes; to do so would result in a false choice.”  Thus, a sexual orientation discrimination claim under Title IX is a sex discrimination claim.

In addition to accepting the plaintiffs’ sexual orientation discrimination claim, Pregerson also accepted the alternative argument that they were targeted as a matter of sex stereotyping.  “Plaintiffs have state a claim for discrimination,” he wrote, “because they allege that Pepperdine treated them differently due to their perceived lack of conformity with gender stereotypes, and further that Pepperdine discriminated against them based on stereotypes about lesbianism.”

Finally, Pregerson would also treat this as a straightforward sex discrimination claim.  “Here,” he wrote, “Plaintiffs allege that they were told that ‘lesbianism’ would not be tolerated on the team.  If Plaintiffs had been males dating females, instead of females dating females, they would not have  been subjected to the alleged different treatment.  Plaintiffs have state a straightforward claim of sex discrimination under Title IX.”

Acknowledging the EEOC’s July 16 decision in Baldwin v. Foxx, 2015 WL 4397641, Judge Pregerson asserted that his conclusion “is in line” with that Title VII ruling.  “The EEOC concluded that ‘an employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.’  For these reasons, as well as for the reasons stated in this Order, this Court agrees.”

Judge Pregerson also concluded that the plaintiffs had alleged a plausible retaliation claim, including that they were forced off the basketball team when they complained about their treatment by the coaches.  “Pepperdine argues that because Plaintiffs tried to hide their relationship status, they therefore never could have made a complaint about discrimination,” wrote Pregerson.  “This argument is without merit.  Plaintiffs clearly allege that they complained to the coaching staff and school officials about intrusive questioning and harassment to which they were subjected.  The fact that Plaintiffs may never have explicitly told school officials that they were dating is irrelevant to whether they complained that they were being harassed.  Again, requiring that Plaintiffs disclose their sexual orientation or relationship status improperly focuses the inquiry on the status of the victim rather than the bias of the alleged harasser, and imposes a burden that Title IX does not contemplate.”

The plaintiffs are represented by Jeffrey J. Zuber and Jeremy J. Gray of Zuber Lawler and Del Duca LLP, a Los Angeles law firm.