At last, a federal district judge has expressly relied on the EEOC’s ruling from July 2015 that sexual orientation discrimination claims can be brought under Title VII of the Civil Rights Act of 1964.
U.S. District Judge Myron H. Thompson of the Middle District of Alabama, rejecting the recommendation of a U.S. Magistrate Judge that a sexual orientation discrimination complaint under Title VII be dismissed on jurisdictional grounds, determined that the Equal Employment Opportunity Commission (EEOC) was correct when it ruled that sexual orientation discrimination is a form of sex discrimination under Title VII. However, this determination in Isaacs v. Felder, 2015 U.S. Dist. LEXIS 146663 (Oct. 29, 2015), did not do any good for the plaintiff, Roger Isaacs, because the court concluded that his factual allegations included neither direct nor indirect evidence of discriminatory intent in his discharge or treatment by his employer.
Isaacs, a gay man, worked for Felder Services as a dietician for about six months. Felder provides various services to healthcare facilities. Isaacs was assigned to work at Arbor Springs Health and Rehabilitation Center under a contract that Felder had with that organization. He complained that he was subjected to a discriminatory hostile environment at Arbor Springs, and relayed this complaint back to Felder, which asked Arbor to investigate and report.
Meanwhile, Isaacs had also been assigned by Felder to provide dietician services at another facility, in Florala, Alabama, once every three weeks. Isaacs had been injured in a car accident and asked for permission “for a man he identified as his brother but who was actually his husband to drive him to Florala, and for the two to stay overnight there,” wrote Judge Thompson, observing that there was a “dispute” about whether Isaacs was authorized to seek expense reimbursements on behalf of his “brother” for these expeditions. He submitted these expenses, and also brought his mother along on some of these trips and submitted for reimbursement of her expenses as well. An administrative assistant at Felder Services raised questions about these expense reimbursements, leading to an internal investigation at Felder. This investigation led to the conclusion that Isaacs was submitting unauthorized expenses for reimbursement, and then Felder’s human resources director received the result of Arbor’s investigation of Isaacs’ allegations about harassment, which found his charges to be unsubstantiated. The results of the expense reimbursement investigation were brought to Felder’s president by the HR director, and they decided to terminate him “based on the improper reimbursement requests.”
Felder asserted Title VII claims of discrimination (by firing him) on the basis of his sex, gender non-conformity, and sexual orientation, hostile environment sexual harassment, and retaliation for claiming about the harassment. The company’s motion for summary judgment was referred to a magistrate judge, who recommended granting the motion as to all three claims. Among other things, the magistrate judge asserted that the sexual orientation claim should be rejected as not actionable under Title VII.
Judge Thompson, conducting de novo review of the record before the magistrate judge, granted summary judgment to the company on all claims, but for some different reasons from those stated by the magistrate judge. Most importantly, Thompson rejected the contention that a sexual orientation discrimination claim could not be brought under Title VII.
“The court rejects the magistrate judge’s conclusion that ‘sexual orientation discrimination is neither included in nor contemplated by Title VII,” wrote Thompson. “In the Eleventh Circuit, the question is an open one,” he wrote, citing to a recent ruling from the Southern District of Georgia, Evans v. Georgia Regional Hospital, 2015 WL 5316694 (Sept. 10, 2015) (where the judge noted that the 11th Circuit hadn’t decided this issue yet). “This court agrees instead with the view of the Equal Employment Opportunity Commission that claims of sexual orientation-based discrimination are cognizable under Title VII,” Thompson wrote, citing the July EEOC decision in Baldwin v. Federal Aviation Administration. In that case, he wrote, “the Commission explains persuasively why ‘an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.’ Particularly compelling is its reliance on Eleventh Circuit precedent,” he continued, noting the EEOC’s invocation of Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986), where the 11th Circuit held that discriminating against an employee based on an interracial marriage or association was a form of race discrimination; Thompson was making an analogy to same-sex marriage or associations as sex discrimination. Judge Thompson also cited a 1994 law review article by Northwestern University Professor Andrew Koppelman titled “Why Discrimination Against Lesbians and Gay Men is Sex Discrimination,” 69 N.Y.U. L. Rev. 197, which made the same argument by analogy to the racial association cases in the wake of the Hawaii Supreme Court’s ruling in Baehr v. Lewin that a ban on same-sex marriage was sex discrimination.
Thompson continued, “To the extent that sexual orientation discrimination occurs not because of the targeted individual’s romantic or sexual attraction to or involvement with people of the same sex, but rather based on her or his perceived deviations from ‘heterosexually defined gender norms,’ this, too, is sex discrimination, of the gender-stereotyping variety,” here again citing Baldwin as well as a concurring opinion in Latta v. Otter, the 9th Circuit’s 2014 marriage equality decision, in which Circuit Judge Marsha Berzon argued that a state ban on same-sex marriage was a form of sex discrimination in violation of the Equal Protection Clause. Judge Thompson quoted a passage from Berzon’s concurring opinion that included a citation to a 1975 law review article by then-professor (now Supreme Court Justice) Ruth Bader Ginsburg titled “Gender and the Constitution” (44 U. Cin. L. Rev. 1), which had helped to provide the theoretical underpinning for the Supreme Court’s subsequent adoption of the view that sex-stereotyping is evidence of sex discrimination.
While determining that the magistrate judge’s recommendation to reject Isaacs’ sex discrimination claim on the basis that Title VII did not apply was incorrect, however, Thompson concluded that Isaacs had failed to allege facts that would give rise to an inference that he was discharged because of his sexual orientation, and he agreed with the magistrate judge that the factual allegations were also insufficient to support Isaacs’ hostile environment and retaliation claims against Felder.
Thompson’s decision is apparently the first by a federal district judge to rely on the EEOC’s Baldwin decision to hold affirmatively that sexual orientation discrimination claims, if supported by sufficient factual allegations, can be brought under Title VII. Since the employer won its motion for summary judgment, there would seem to be no reason for it to seek review of Thompson’s ruling at the 11th Circuit, but the issue might get there if Isaacs were to appeal. He is represented in this lawsuit by Benjamin Howard Cooper of Cooper Law Group LLC, Birmingham, Alabama.Tags: Baldwin v. Federal Aviation Administration, District Judge Myron H. Thompson, EEOC, Equal Employment Opportunity Commission, Isaacs v. Felder Services, Justice Ruth Bader Ginsburg, Professor Andrew Koppelman, sexual orientation discrimination as sex discrimination, Title VII sexual orientation discrimination claims, U.S. District Court for the Middle District of Alabama