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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.