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Gay and Trans Plaintiffs Advance Title VII Discrimination Claims Using Sex Stereotyping Theory

Posted on: October 10th, 2016 by Art Leonard No Comments

Two federal trial courts have allowed Title VII claims by law enforcement officers, one gay and the other transgender, to proceed over employer protests early in October. On October 4, U.S. District Judge Jennifer A. Dorsey granted summary judgment to Bradley Roberts, a transgender man employed as a police officer by the Clark County School District in Nevada, on his claim of gender discrimination in violation of Title VII and the Nevada Equal Rights Law, while referring claims of harassment and retaliation to a magistrate judge for trial.    Roberts v. Clark County School District, 2016 U.S. Dist. LEXIS 138329, 2016 WL 5843046 (D. Nevada).  On October 7, Chief U.S. Magistrate Judge John E. Ott of the Northern District of Alabama denied the City of Pleasant Grove’s motion to dismiss a Title VII claim by an openly gay man, Lance Smith, who had been discharged from the city’s Police Department.  Smith v. City of Pleasant Grove, 2016 U.S. Dist. LEXIS 139575, 2016 WL 5868510 (N.D. Alabama).  In both cases, the judges referred to the Supreme Court’s 1989 decision, Price Waterhouse v. Hopkins, 490 U.S. 228, which endorsed the view that employees who suffered adverse consequences because of their failure to comply with the employer’s sex-stereotypical views could sue for sex discrimination under Title VII.

In 2012, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII, issued an administrative decision finding that the statute forbids gender identity discrimination, and the EEOC issued a similar ruling regarding sexual orientation discrimination in 2015. The EEOC rulings relied upon and extended the sex-stereotyping theory.  The agency’s rulings are not binding on the federal courts, but federal trial judges have begun over the past year to acknowledge them and, in some cases, to follow their reasoning.

The Clark County School District first hired Bradley Roberts as a campus monitor in 1992. At that time Roberts was known by a female name and hoped to become a police officer. Roberts graduated from a law enforcement academy in 1994 and was then hired by the District to be a police officer, a position Roberts held without incident for seventeen years until he began to transition.

In 2011, Roberts began dressing as a man, grooming as a man, and identifying himself as a man. He started using the men’s bathroom at work, leading to complaints from some of the other officers.  His commanding officers confronted him for an explanation, which he gave, explaining that he was transgender and in the process of transitioning.  He said he wanted to be known henceforth as Bradley Roberts and to use the men’s bathrooms.  They told him he could not do so, but that because he now appeared as a man, he should also refrain from using the women’s bathrooms.  There were some gender-neutral bathrooms in the District schools, and he was instructed to use them “to avoid any future complaints.”  Roberts followed up by sending  a letter to his superiors summarizing what he had told them and again expressing his desire to be called Bradley Roberts, for co-workers to use male pronouns in referring to him, and he promised to comply with the men’s grooming code for the District police force.

Roberts’ letter prompted another meeting with his superiors and his union representative. His request to use men’s bathrooms was again denied, and he was told he would not be referred to as a man or allowed to use the men’s bathrooms until he could provide official documentation of a name and sex change.  However, two days later, at yet another such meeting, he was told that the District would allow him to use a man’s name informally, but all “official and formal documents” would continue to use his female name until he got a court-ordered name change and processed it through the Human Resources department.  He would still be required to use only the gender-neutral bathrooms.

 

Roberts then received a proposed memo summarizing these arrangements, including his concern that co-workers and commanding officers be cautioned that asking “below the belt” questions about his anatomy “may constitute sexual harassment.” Roberts thought this memo was only going to be distributed among supervisors and managers, and claims he was “blindsided” when it went by email to everybody in the Department, generating questions and what he considered to be harassing conduct from some co-workers.

In December 2011, a court granted his name change petition, he updated his driver’s license to reflect his name and gender, and he submitted paperwork to Human Resources, which resulted in yet another email going out to the entire department explaining his name change and stating that it would take effect for purposes of his official records. However, he subsequently discovered that he was still listed as “female” on the new insurance card he was issued for 2012.

Roberts then filed a discrimination complaint with the Nevada Equal Rights Commission, alleging gender identity discrimination in violation of state law. (Nevada’s statute specifically includes gender identity.)  He cited the bathroom ban as discriminatory, and described several incidents, including the meetings with supervisors as harassment.  The District claimed that the steps it had taken had resolved any problem and refused to participate in mediation with the NERC, but in the face of a scheduled hearing the District issued a new bathroom policy, allowing Roberts to use the men’s bathrooms.  NERC then closed Roberts’ discrimination case as “moot,” but he filed a second charge, citing the bathroom ban, offensve comments from co-workers, and the department-wide emails that had essentially “outed” him to the Department without his permission.  He also alleged retaliation for filing the earlier charges and improper questions, comments and gestures by co-workers.  Ultimately he received a “right-to-sue” letter from the EEOC and sued the District in federal court.

In response to motions for summary judgment, Judge Dorsey undertook a thorough historical review of the treatment of gender identity under Title VII, emphasizing how the 9th Circuit Court of Appeals, which has appellate jurisdiction over the federal trial courts in Nevada, has embraced a broad understanding of sex discrimination under Title VII and other federal laws, such as the Violence Against Women Act.  She explained how the Price Waterhouse case had generated a growing body of decisions in other circuits allowing gender identity claims under Title VII in reliance on the sex stereotyping theory, and she noted the EEOC’s decisions in 2012 and 2015 extending this to bathroom access for transgender employees.

“I join the weight of authority and hold that discrimination against a person based on transgender status is discrimination ‘because of sex’ under Title VII,” she wrote, continuing that “because it appears that the Ninth Circuit would hold that gender-identity discrimination is actionable under Title VII, I see no reason to depart from the heavy weight of this authority. Nothing in the few contrary decisions cited by the school district persuades me otherwise.  The contrary Seventh and Tenth Circuit decisions provide no cogent analysis of Title VII’s language or the Supreme Court case law,” as they relied heavily on outdated precedents.  Further, she concluded that Roberts was entitled to summary judgment on his sex discrimination claims, because it was clear that he had suffered discrimination on that basis at the hands of the District.

“Direct evidence established the department’s discriminatory intent here,” wrote Judge Dorsey. “It banned Roberts from the women’s bathroom because he no longer behaved like a woman.  This alone shows that the school district discriminated against Roberts based on his gender and sex stereotypes.  And the department also admits that it banned Roberts from the men’s bathroom because he is biologically female.  Although CCSD contends that it discriminated against Roberts based on his genitalia, not his status as a transgender person, this is a distinction without a difference here.  Roberts was clearly treated differently than persons of both his biological sex and the gender he identifies as – in sum, because of his transgender status.”

Dorsey found that the bathroom ban was “an adverse employment action,” that Roberts was treated differently than similarly situated employees, and that the District failed to articulate a legitimate non-discriminatory reason for restricting his bathroom use.

However, she found that factual disputes precluded granting summary judgement on the harassment and retaliation claims, since there was a dispute about whether the conduct experienced by Roberts was sufficiently severe to meet the harassment standard or whether any adverse treatment he experienced was actually a response to his complaining about his treatment. Thus, summary judgment was denied as to those charges, and the judge referred them to a magistrate judge for further proceedings to resolve those factual disputes.

The Smith case involves straightforward sexual orientation discrimination by a local Alabama police department. Lance Smith interviewed with Lt. Jennifer Fredrick for an available position in the Pleasant Grove Police Department (PGPD) in 2014.  She told him he would be offered a position at a specific salary.  At the end of the interview, Smith told Fredrick that he is gay and has a same-sex partner.  Smith says that Fredrick’s demeanor immediately changed and she advised him to “reconsider” his desire to work in the PGPD.  However, after the interview Smith received an email from Fredrick informing him that “his homosexuality would not be an issue,” wrote Judge Ott.  This was evidently untrue, to judge by subsequent events related by Smith in his Title VII complaint.

After Smith completed the required physical exam, he was directed to meet with the Chief of Police, Robert Knight, who told him he would receive a lower salary than he had been promised by Lt. Fredrick. In his complaint, he claims he was paid $5,000 less than other new recruits.  Smith claims that he received only two weeks of field training instead of the three normally provided to new recruits, and then was assigned to a night shift patrol on his own rather than the usual assignment for new officers to patrol with a partner.  Smith claims that he was informed by the night shift sergeant that “Lt. Fredrick had instructed the sergeant to write down everything Smith did wrong so Lt. Fredrick could fire him.”  Smith says another officer warned him to be “careful” because a police corporal was a “homophobe.”

After a few months, Lt. Fredrick told Smith he was “not going to work out” and needed to resign, but refused to tell him what he had done wrong. In fact, he claims, she told him he was a good officer and would find another department that would “fit” him better.  Fredrick gave him a previously-prepared resignation letter and told him he would be grounded, suspended, and then fired if he did not resign.  Smith signed the letter and attempted to find police work elsewhere in the county, relying on Fredrick’s statement that she would advise prospective employers and the Jefferson County Personnel Board that he resigned in good standing, but he claims he was unable to find employment because Knight and Fredrick had “falsely reported that he was an unsatisfactory employee.”

Smith filed a sex discrimination charge with the EEOC, which issued him a right to sue letter. He filed his suit on March 1, 2016, claiming he was subjected to “discriminatory terms and conditions of employment because of his sexual orientation, and stereotypes associated with his sex and his gender,” in violation of Title VII.  He also alleged a violation of his rights under the Equal Protection Clause of the 14th Amendment, and asserted a state tort claim that the City, Knight and Fredrick had interfered with his “contractual or business relationship with prospective employers” by giving him a bad employment report.  The defendants moved to dismiss on various grounds, including the claim that Title VII does not apply to his case.

“Traditionally, court in this circuit have held that Title VII does not provide a remedy for discrimination based on sexual orientation,” wrote Judge Ott, citing a long list of cases, and adding a list of cases from other circuits with similar holdings. “The Equal Employment Opportunity Commission, however, recently concluded that ‘an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII,’” he wrote, and “at least one court in this circuit, noting that the question is an ‘open one,’ has agreed with the EEOC and has found that ‘claims of sexual orientation-based discrimination are cognizable under Title VII.’”

More importantly, wrote Ott, “Smith has also alleged discrimination based on his failure to conform to sex and gender stereotypes.” While Ott rejected Smith’s argument that discrimination based on his association with his male partner is prohibited sex discrimination, he found that the 11th Circuit, which has appellate authority over federal courts in Alabama, had accepted a broad view of sex discrimination in the Brumby case in 2011, involving a transgender state employee asserting an equal protection claim.  In that case, the 11th Circuit relied on sex-stereotype theory to conclude that Brumby had a valid equal protection claim, finding that his claim should be analyzed under the same “heightened scrutiny” standard used for sex discrimination claims.

“In his amended complaint,” wrote Ott, “Smith alleges that ‘sexual and gender-stereotyping comments’ were made to him during his employment with the Pleasant Grove Police Department, including the comment that ‘men should be men,’ which led him to conclude that other members of the department did not feel that he was ‘manly’ enough to be a police officer. He also alleges that other officers made jokes about his attire and mannerisms.  These factual allegations are ‘enough to raise a right to relief [under Title VII] above the speculative level,’” Ott continued, citing a Supreme Court ruling on the required factual allegations to ground a civil complaint.  “They are sufficient to allow the court to draw the reasonable inference that the City of Pleasant Grove could be liable for discriminating against Smith because of his failure to conform to sex and gender stereotypes.”  Thus, Ott refused to dismiss the Title VII claim, which will next proceed to discovery.

However, Ott dismissed the Equal Protection claim, asserting that Smith had failed to allege facts that would support an inference that he was denied equal protection of the laws because he failed “to adequately allege the existence of a similarly situated comparator, an essential component of an equal protection claim. To prevail on his equal protection claim, Smith must show ‘a satisfactory comparator who was in fact similarly situation and yet treated differently.’”  Ott found two relevant allegations in Smith’s complaint: that he was paid less than “similarly situated employees” and that he was “singled out because of his association with his male partner while similarly situated employees were not.” But Ott found that Smith had failed to identify particular specific “similarly situated employees” to illustrate these claims.  “He does not identify a single comparator who was allegedly treated more favorably than he was,” concluded Ott.

However, Judge Ott refused to dismiss Smith’s claim against Chief Knight and Lt. Fredrick in their individual capacities for “interference with a contractual or business relationship,” rejecting their argument that any adverse comments they made were privileged due to the city’s relationship with the county personnel board. “In their individual capacities,” wrote Ott, “Chief Knight and Lt. Fredrick did not have a ‘legitimate economic interest in and a legitimate relationship to’ any contract of business relationship Smith might secure through the Jefferson County Personnel Board.”  On the other hand, Ott rejected Smith’s claim that the City could be held liable for maintaining an “official custom or policy” of discrimination, finding insufficient factual allegations to support such a claim.

Bradley Roberts is represented by a team of lawyers led by Jason Maier of Las Vegas, with amicus assistance from Lambda Legal staff lawyers and cooperating attorneys. Lance Smith is represented by Cynthia Wilkinson of Birmingham, Alabama.

Judge Dorsey was appointed by President Barack Obama. Judge Ott was appointed by President Bill Clinton.