U.S. District Judge Michael McShane ruled on August 21 that a lesbian former employee could sue a hospital under Title VII of the federal Civil Rights Act for 1964 for retaliatory discharge, even though the complaints she claims to have made before her discharge concerned sexual orientation discrimination. Bennefield v. Mid-Valley Healthcare, 2014 U.S. Dist. LEXIS 116554 (D. Or.). Title VII outlaws discrimination because of sex, but federal courts have generally held that this does not include sexual orientation discrimination. While finding that the plaintiff had not stated valid Title VII claims of discrimination and retaliation because of religion, and noting that the plaintiff had withdrawn her sexual orientation discrimination claim under Title VII, McShane’s ruling on the retaliation claim preserved the court’s federal question jurisdiction, which also extends to supplementary claims under the Oregon Whistleblower statute and the state’s human rights law, which does forbid sexual orientation discrimination.
The plaintiff, Stephanie Bennefield, began working at Mid-Valley on May 2, 2011. During her probationary period, she came out to many co-workers as a lesbian. Bennefield alleges that one co-worker created a hostile work environment for Bennefield after learning that she was a lesbian, including referring to her as a “disgusting lesbian” and a “stupid lesbian” and becoming uncooperative in their work, including provoking Bennefield to walk out of the operating room in disgust due to her refusal to cooperate. Bennefield claims to have made numerous informal complaints to supervisors, but it was after she made a formal complaint to the Human Resources Department that she was notified of her discharge. One comment by this hostile employee referring to religion was the basis for Bennefield’s claim of religious discrimination, which Judge McShane did not find persuasive.
Bowing to the fact that federal courts generally do not interpret Title VII’s sex discrimination ban to extend to sexual orientation discrimination, Bennefield agreed to dismissal of her Title VII sexual orientation discrimination claim. Ultimately, the court’s continued jurisdiction over her case turned on whether her Title VII retaliation claim was valid. The Hospital contended that her supervisor had decided to discharge her before she filed her formal complaint, and the supervisors disavowed having received any informal complaints from Bennefield concerning the conduct of this co-worker, but those are factual disputes to be resolved at trial if Bennefield has stated a cause of action sufficient to survive the hospital’s summary judgment motion. The sticking point was in deciding whether Title VII’s retaliation provision extends to dismissal for complaining about sexual orientation discrimination.
The statute, by its terms, prohibits an employer from retaliating against an employee “because he has opposed any practice made an unlawful practice by this subchapter.” 42 USC sec. 2000e-3(a). On its face, this would suggest that complaints about discriminatory conduct that is not itself forbidden by Title VII could not provide the foundation for a Title VII retaliation claim. But Judge McShane noted that courts – and particularly the 9th Circuit, whose rulings are precedential for the district court in Oregon – had been willing to extend the protection of this provision to employees who believed in good faith that they were complaining about conduct that violates Title VII. The question would be whether the plaintiff held a “reasonable belief” to that effect.
“Defendants… appear to conclude that mistakes of law cannot support a Title VII retaliation claim,” he wrote. “I think that argument goes too far. An employee may bring a retaliation claim even if the employee makes a mistake of law in thinking that the employer engaged in prohibited conduct,” citing Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1994). “Whether the error is one of fact or law is irrelevant, so long as the mistake is made in good faith,” he continued, citing Jurado v. Eleven-Fifty Corp., 813 F.2d 1406 (9th Cir. 1987). “Title VII is construed broadly, and ‘this directive applies to the reasonableness of a plaintiff’s belief that a violation occurred, as well as to other matters.’ Although the reasonableness prong is an objective standard, courts must take into account ‘the limited knowledge possessed by most Title VII plaintiffs about the factual and legal bases of their claims.’”
Judge McShane does not mention, but could well have done, that public opinion polls show that a majority of the public incorrectly believes that anti-gay employment discrimination is illegal under Title VII, even though most federal courts construe Title VII otherwise and most states have not banned sexual orientation discrimination in employment. This suggests that many employees – especially those whose job does not require them to keep up with legal issues – assume that anti-gay discrimination is unlawful, and that they may expect protection against retaliation if they complain to a supervisor about such discrimination. The situation is complicated in a state like Oregon, where the state forbids sexual orientation discrimination and employees may presume that they are protected so long as their complaint concerns conduct that is unlawful, regardless whether the anti-discrimination law in question is state law or federal law. Thus, Bennefield was complaining about unlawful discrimination, but it was not discrimination made expressly unlawful by Title VII.
“That discrimination based on one’s sexual orientation turned out to not be prohibited under Title VII does not make Bennefield’s belief objectively unreasonable,” wrote McShane. In making this conclusion, I take into account ‘the limited knowledge possessed by most Title VII plaintiffs about the factual and legal bases of their claims,’” again quoting from a 9th Circuit opinion. McShane also rejected the defendant’s argument that Bennefield could not demonstrate that her discharge was due to a complaint that she filed after her supervisor had already decided to discharge, because Bennefield had alleged numerous informal complaints predating that decision. He also noted that Bennefield’s pleadings contradict the employer’s contentions about her deficiencies as an employee, creating a material fact issue that it would be improper to resolve on summary judgment. “Viewed in the light most favorable to Bennefield,” he concluded on this point, “she has met her burden of demonstrating defendants’ proffered reasons for firing her were pretextual.”
Bennefield is represented by Carl Lee Post, Cynthia J. Gaddis and Daniel J. Snyder of the Law Offices of Daniel Snyder in Portland, Oregon. Judge McShane is the first openly-gay person to serve as a U.S. District Judge in the District of Oregon, and recently rendered the ruling holding Oregon’s ban on same-sex marriage unconstitutional. Because the state decided not to appeal his ruling, Oregon recently became a marriage equality jurisdiction.