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Missouri Supreme Court Revives Sex Discrimination Law Suits by Gay and Transgender Plaintiffs

Posted on: March 2nd, 2019 by Art Leonard No Comments

The Missouri Supreme Court issued a pair of rulings on February 26, reversing circuit court dismissals of sex discrimination lawsuits by gay and transgender plaintiffs.  Lampley v. Missouri Commission on Human Rights, 2019 WL 925557, 2019 Mo. LEXIS 52; R.M.A. v. Blue Springs R-IV School District, 2019 WL 925511, 2019 Mo. LEXIS 54.  In both cases, the court was sharply split, and in neither opinion did the Court hold that sexual orientation or gender identity discrimination claims, as such, may be brought under the state’s Human Rights Law.  However, at least a majority of the seven judges agreed in both cases that being gay or transgender does not bar an individual from making a sex discrimination claim under the statute, which it least allows them to survive a motion to dismiss for failure to state a claim.

The decision is significant because Missouri is a conservative state that has not amended its Human Rights Act to ban discrimination because of sexual orientation or gender identity, and Missouri’s federal courts are in the 8th Circuit, where the federal court of appeals has not yet ruled on a pending appeal posing the question whether the federal Civil Rights Act’s ban on sex discrimination can be interpreted to cover such claims.

The first of the two decisions, Lampley v. Missouri Commission on Human Rights, involves discrimination claims by two employees of the Missouri Department of Social Services Child Support Enforcement Division.  Harold Lampley filed a discrimination charge with the Commission, checking off on the charge form that he was a victim of discrimination because of “sex” and “retaliation.”  A heterosexual co-worker of Lampley, Rene Frost, also filed a charge, claiming she suffered “retaliation” because of her association with Lampley.

In the narrative portion of his charge, Lampley stated that he is a gay man who does not exhibit the stereotypical attributes of how a male should appear and behave, as a result of which he was treated differently from “similarly situated co-workers” who were not gay and who exhibited “stereotypical male or female attributes.”  Lampley claimed he was subjected to harassment at work, and that in retaliation for his complaints, he was “grossly underscored” in a performance evaluation.

In her narrative, Frost described her close friendship with Lampley.  Frost had complained about a performance review, the result of which was publicly announced to her co-workers in a departure from practice, and after which she claimed the employer moved her desk away from Lampley and the other co-workers with whom she collaborated. She was told she and Lampley were not allowed to eat lunch together, as they customarily did.  She also claimed that, unlike other employees, both she and Lampley were docked for pay for the time they met with their union representative about these issues, and that she continued to be subjected to verbal abuse, threats about her performance review, and “other harassing behaviors” as a result of her friendly association with Lampley.

The Commission’s investigator decided that Lampley was really trying to assert a sexual orientation discrimination claim, and that Frost’s claim was really that she was discriminated against for associating with a gay person.  In both cases, the investigator determined that the Act did not cover these charges, and the Commission terminated its proceedings, stating that both claims did not involve a category of discrimination covered by the law. The cases were “administratively closed,” and the Commission did not issue either Lampley or Frost the usual “right to sue” notice that would authorize them to go to court.

Thus stymied, Lampley and Frost filed petitions with the circuit court for administrative review, or, alternatively, for a writ of mandamus – an order from the court to the Commission to issue them right-to-sue notices.  The circuit court granted the Commission’s motion for summary judgment, citing a 2015 Missouri Court of Appeals decision that stated that sexual orientation claims are not covered by the statute.

The Supreme Court judges were divided over how to characterize this case and whether the Supreme Court even had jurisdiction to decide it, finding procedural problems with the Lampley and Frost lawsuits, but ultimately a majority concluded that they could address these appeals on the merits.

As to that, three members of the seven-member court, joining in an opinion by Judge George W. Draper, III, concluded that it was appropriate to follow federal precedents stemming from the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), holding that the denial of a promotion to a female employee who was criticized as being too masculine in her dress and demeanor violated the rule against discrimination because of sex.  The Supreme Court accepted the argument that reliance on sex stereotypes in making personnel decisions was evidence of employment discrimination because of sex.

Turning to this case, Judge Draper wrote that it was wrong for the Commission to drop its investigation and close the case, because Lampley did not allege in his charge that he was a victim of sexual orientation discrimination.  Although he mentioned more than once in his narrative that he is a gay man, his claim was that he was a victim of sex discrimination because he did not exhibit stereotypical attributes of males.  Thus, he was entitled to an investigation of his claim, and similarly Frost was entitled to an investigation of her claim of retaliation against her based on her association with Lampley.  Draper emphasized that sexual orientation discrimination claims, as such, are not covered by the statute.  But he pointed to several opinions by federal courts, interpreting Title VII, that allowed gay plaintiffs to pursue sex discrimination claims using the sex stereotype theory.

Furthermore, wrote Draper, since the statutory time for investigation of a claim had long since expired, the appropriate remedy was for the circuit court to issue a writ of mandamus ordering the Commission to issue right-to-sue notices to Lampley and Frost so they could pursue their discrimination claims in the circuit court.

One member of the Supreme Court concurred, but on a narrower ground.  Judge Paul C. Wilson, who wrote the opinion for a majority of the court in the R.M.A. case, discussed below, wrote that this case “should be analyzed and disposed of entirely on the basis of whether the facts alleged by Claimants assert sex discrimination claims covered by the MHRA,” which, he wrote, “they plainly do.”  However, he wrote, “the principal opinion does not stop there.  Instead, it proceeds to opine on whether ‘sex stereotyping,’ as discussed in the Title VII context in Price Waterhouse v. Hopkins, is a type of sex discrimination under the MHRA.”  But, referring to his opinion in R.M.A., Wilson argued that the MHRA “does not provide for ‘types’ of sex discrimination claims.”  Either a claimant is alleging sex discrimination or not.  If he or she is alleging sex discrimination, they are entitled to have their claims investigated and, ultimately, to present them to a court if they can’t be resolved by the Commission.

Judge Wilson would leave to a later stage in the litigation, when the matter is before the circuit court on the merits, the question whether the facts proven by the plaintiff in the lawsuit would amount to sex discrimination in violation of the law.  Thus, he saw the discussion of sex stereotypes as premature at this stage of the litigation.

Wilson agreed with Judge Draper’s opinion that the MHRA does not forbid sexual orientation discrimination as such.  His concurring vote, however, provided Draper with the majority to hold that the circuit court should not have granted summary judgment to the Commission, because Lampley was not claiming sexual orientation discrimination.

Chief Judge Zel Fischer agreed with Draper and Wilson that the state law does not forbid sexual orientation discrimination, but Fischer concluded for procedural reasons that the appeal should be dismissed.  Judge W. Brent Powell, in a separate dissent, while agreeing with Fischer that the court should dismiss the appeal on procedural grounds, said that otherwise the circuit court’s decision should be affirmed because “mandamus cannot be used to control the administrative agency’s executive director’s discretionary determination that Lampley’s and Frost’s complaints alleged discrimination based on sexual orientation rather than sex stereotyping.”  If that decision was reviewed under an “abuse of discretion” standard, wrote Powell, “the executive director did not abuse her discretion in closing Lampley’s and Frost’s complaints because the determination that the complaints alleged discrimination based on sexual orientation rather than sex stereotyping was not unreasonable, arbitrary, or clearly against the logic of the circumstances considering the allegations contained in the complaints.”

The footnotes of the opinions by Draper and Powell battle over how to characterize the narrative portions of the charges filed with the Commission.  Draper emphasizes that both Lampley and Frost claimed to be victims of sex discrimination because of sex stereotyping, while Powell emphasizes that Lampley’s extended narrative, not quoted in full in the plurality opinion, could clearly support a conclusion that he was the victim of sexual orientation discrimination, thus making the Commission’s conclusion rational and not arbitrary.

In the R.M.A. case, the teenage student filed suit claiming that the school’s refusal to let him use boys’ restrooms and locker rooms was discrimination because of sex.  The plaintiff’s claim to the Commission and Complaint in the Circuit Court stated that his “legal sex is male” and that by denying him “access to the boys’ restrooms and locker rooms,” the school discriminated against him in the use of a public accommodation “on the grounds of his sex.”

R.M.A. filed his charge with the Commission in October 2014, and the Commission issued him a right-to sue notice in July 2015.  He filed suit against the school district and board of education in October 2015.  The defendants move to dismiss the complaint on two grounds: that the Act does not cover gender identity discrimination, and that the public schools are not subject to the public accommodations provisions.  The circuit court granted the motion to dismiss in June 2016, “without explanation,” and R.M.A. appealed.

Writing for give members of the court, Judge Wilson, as noted above in his concurring opinion in the Lampley case, asserted that it was unnecessary for the court to deal with the question whether R.M.A. had a valid sex discrimination.  Since it was dealing with an appeal from a motion to dismiss, he wrote, the court should focus on what R.M.A. alleged in his Complaint.  There, he stated that he was legally a male, and that the school’s denial of his access to the boys’ facilities discriminated against him because of his sex.  To Wilson, this was straightforward.  R.M.A. was claiming sex discrimination, and denial of access to school facilities because of his sex.  At this stage of the litigation, that should be enough to survive a motion to dismiss, and it was not necessary to address the question whether gender identity discrimination claims can be brought under the statute, because R.M.A. made no such claim in his Complaint.  Furthermore, Wilson saw no merit to the argument that the school’s restroom and locker room facilities were not subject to the ban on sex discrimination in public accommodations under the MHRA.

One can easily imagine what Judge Powell thought about this.  In his vehement dissent, joined by Chief Judge Fischer, Powell insisted that the term “sex” as used in the Act could not be construed to allow gender identity discrimination claims, and he insisted that this is what R.M.A. was trying to assert.

“The MHRA does not define the word ‘sex,’” wrote Powell.  “When there is no statutory definition, the plain and ordinary meaning of a statutory term can be derived from the dictionary.”  Quoting from Webster’s 3rd New International Dictionary (1993), the word “sex” means “one of the two divisions of [organisms] esp. human beings respectively designated male or female.”  A secondary definition from Webster’s is the “sum of morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination… that is typically manifested as maleness or femaleness.”  And a third definition: “The sphere of interpersonal behavior esp. between male and female,” and the “phenomena of sexual instincts and their manifestations,” and “determining the sex of an organic being.”  Powell characterized these as boiling down to the concept of “biological sex,” asserting: “The MHRA, therefore, prohibits discrimination based on the biological classifications of male or female and does not extend to the separate concept of transgender status.”

Consequently, Powell concluded, “the petition survives a motion to dismiss only if it alleges that, as a biological female, R.M.A. was deprived of a public accommodation available to biological males.  R.M.A. makes no such allegation,” Powell continued.  “Instead, R.M.A. alleges he is a female who has transitioned to living as a male, and that the Defendants discriminate against him based on his sex by preventing him from using the boys’ restrooms and locker room.  R.M.A. does not allege that, as a biological female, he was barred from any public accommodation afforded to biological males.  Instead, R.M.A.’s allegation of discrimination distills to an acknowledgment that the Defendants excluded him from the boys’ restrooms and locker room because he is biologically female. If, as the principal opinion reasons, the relevant allegation is that R.M.A.’s ‘legal sex’ is male, then the majority will have ignored the crux of the petition while discarding the substance of the MHRA. The logical upshot is that the majority is presumably willing to hold the MHRA prohibits schools from maintaining separate restrooms and locker rooms for male and female students.  The alternative, of course, is to accept all of R.M.A.’s allegations as true, apply the plain language of the MHRA, and hold R.M.A.’s petition fails to state a claim of sex discrimination.”

Powell concluded that the question whether the statute should cover this kind of case was a policy question for the legislature, not the court.  “The General Assembly has spoken, and R.M.A.’s petition fails to state a claim of unlawful sex discrimination under the MHRA,” stated Powell, declaring that the judgment of the circuit court should be affirmed.  To Judge Wilson, speaking for a majority of the court, Judge Powell’s arguments were irrelevant on the motion to dismiss, since R.M.A. had met the minimal pleading requirement of articulating a claim of sex discrimination.

Given the voting dispositions in these two cases, it is difficult to predict the future course of sex discrimination claims by gay and transgender plaintiffs in Missouri.  While they may survive motions to dismiss their claims, and a reluctant Human Rights Commission may be able to conciliate with the parties and obtain settlements in some cases, ultimately the questions posed by Judge Powell will come right back when the cases are litigated on the merits.  Since Judge Draper’s analysis was supported by only a minority of the court, it is uncertain whether his use of the sex stereotype theory would prevail in a ruling on the merits of a gay plaintiff’s sex discrimination claim.  And the limited nature of Judge Wilson’s ruling in R.M.A.’s case gives no hint of how a majority of the court would deal with a transgender student’s claims to restroom and locker room access.  Looming over all these questions is the pending 8th Circuit appeal under Title VII, and the possibility that the U.S. Supreme Court may hear cases next term concerning gay and transgender rights under federal sex discrimination laws.

Lampley and Frost are represented by Jill A. Silverstein, D. Eric Sowers, Ferne P. Wolfe and Joshua M. Pierson of Sowers & Wolf LLC in St. Louis.  R.M.A. is represented by Alexander Edelman and Katherine Myers of Edelman, Lisen & Myers LLP in Kansas City, and Madeline Johnson of the Law Offices of Madeline Johnson in Platte City, Missouri.

Autistic Student Subjected to Homophobic Bullying May Proceed on Title IX and Equal Protection Claims

Posted on: April 30th, 2017 by Art Leonard No Comments

In an early application of the 7th Circuit’s ruling in Hively v. Ivy Tech Community College, 853 F.3d 339 (Apr. 4, 2017), U.S. District Judge James D. Peterson of the Western District of Wisconsin (which is in the 7th Circuit) ruled that an autistic man who used to be a student in the Eau Claire Area School District can maintain his action under Title IX and the Equal Protection Clause on a claim that he was subjected to harassment based on sex-stereotyping and a perception by other students that he was gay, and that school authorities who were informed of the harassment did not take any reasonable steps to address the situation.  Bowe v. Eau Claire Area School District, 2017 WL 1458822, 2017 U.S. Dist. LEXIS 61496 (D. Wis., April 24, 2017).

Connor Bowe also asserted claims under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1974, as well as Title VI of the Civil Rights Act. Wrote Judge Peterson, summarizing the complaint, “Bowe’s schoolmates bullied him for many years.  They called him names, such as ‘gay,’ ‘queer,’ ‘fag,’ ‘pussy,’ ‘stupid,’ and ‘butt boy.’  They shoved him and threw things at him.  ‘At some point prior to’ February 2011, when Bowe was about to turn 14, [Principal Tim O’Reilly] and non-party Kevin Stevens, another District official, told some of Bowe’s classmates that Bowe suffered from autism.  Bowe’s parents did not consent to the disclosure of Bowe’s disability.  The bullying continued, and in fact grew more serious.  Between February 2011 and February 2014, Bowe’s classmates called him ‘stupid,’ ‘fat,’ ‘weak,’ ‘fag,’ ‘pussy,’ ‘shit stain,’ and ‘bubble butt.’  They accused him of having ‘mental deficiencies’ and told him to ‘go fucking die.’  They threw things at him, threatened to hurt him, ‘physically assaulted him,’ threw eggs at his house, and left a bag of feces at his house.  Bowe and his parents complained to [Principal David] Oldenberg, O’Reilly, and other District officials about the bullying multiple times a year each year from 2010 to 2015, but no District official took any action to end the bullying.  Because of the bullying, Bowe’s grades fell significantly and he was prevented from fully participating in some of his classes.”  We have reproduced the court’s summary in full so that readers can appreciate the severity of abuse Bowe claims to have suffered.

Bowe filed his complaint on November 14, 2016. The defendants moved to dismiss.  They argued, as to the ADA and Rehabilitation Act claims, that Bowe had not alleged “facts sufficient to show that he was harassed based on his disability or that the harassment was sufficiently severe or pervasive,” according to Judge Peterson’s description of the motion.  Who are they kidding?  They tried to argue that because just a few of the items of verbal harassment might be linked to Bowe’s autism, he could not state a claim under the disability discrimination laws.  Peterson rejected that argument.  “When some incidents of harassment are alleged to be based on the plaintiff’s protected status, the court may consider allegations of other, more generalized harassment when determining whether the alleged harassment was severe enough to state a peer-harassment claim.  One may reasonably infer from Bowe’s allegations that the totality of the harassment he endured was so severe that it changed the conditions of his education and created an abusive education environment.”

As to the Title IX sex discrimination claim, Peterson rejected the defendants’ argument that “Bowe has not plausibly alleged that he was harassed on the basis of sex.” To the contrary, he wrote, “As both parties recognize, allegations that a plaintiff was ‘harassed because of a failure to adhere to specific sexual stereotypes’ are sufficient to satisfy this element,” citing Hively.  He noted a district court decision from Indiana that found that it was reasonable to infer harassment because of “failure to adhere to traditional male stereotypes” when a victim was called “gay” and “faggot” by bullies.  While conceding the defendants’ contention that some courts have described as a “subtle” issue under Title IX the inference to be drawn when “young children” use “gendered words” to bully other children, Peterson pointed out that the cases defendants were relying on “show that the use of such words by middle- and high-school students may constitute sexual harassment.”  Here, he wrote, “the consistent pattern of gender stereotype slurs alleged by Bowe makes it easy to infer that his classmates harassed him because of his failure to adhere to traditional gender stereotypes.”

In addition to his statutory claims, Bowe sought to hold two District officials liable for an equal protection violation under the 14th Amendment, asserting a “class-of-one” equal protection claim. Defendants argued that he had failed to allege that he was treated differently from others similarly situated.  (What?  Are they claiming that all students who complained of harassment were similarly blown off or ignored by school administrators?)  Peterson rejected this argument, relying on Miller v. City of Monona, 784 F.3d 1113 (7th Cir. 2015), for the proposition that “‘plaintiffs alleging class-of-one equal protection claims do not need to identify specific examples of similarly situated person in their complaints,’ at least when the complaint does not otherwise reveal a rational basis for the difference in treatment.”  Here, wrote Peterson, “Bowe alleges that O’Reilly and Oldenberg knew about the ongoing harassment but took no action to stop it.  Taking these allegations as true, there is no rational basis for their treatment of Bowe.  So Bowe’s equal protection claims will survive defendants’ motion to dismiss.”

The defendants also argued that because Bowe could have asserted claims under the Individuals with Disabilities Education Act (IDEA), he was required to file his charges with the Department of Education and exhaust administrative remedies before filing suit, but Peterson was unpersuaded, finding that Bowe’s claims arose independently under the various discrimination laws he cited, and did not require administrative exhaustion. At this point, the now 20-year-old Bowe is seeking a remedy for past actions, not suing under IDEA for an order to the school district to ensure that he receive the “free appropriate public education” promised under IDEA.

However, Peterson noted that Bowe “made no argument in support” of his direct ADA and Rehabilitation Act claims (and a racial discrimination claim under Title VI) in responding to the motion to dismiss, and so those claims were waived and would be dismissed in response to the district’s motion. Peterson also denied Bowe’s request to allow him to file an amended complaint to make up for any pleading deficiencies, finding that the original complaint, which withstood the motion to dismiss under Title IX and the Equal Protection Clause, was adequate to support his claims for the relief he is seeking.  Thus, Peterson denied the defendants’ motion to dismiss the Title IX and Equal Protection claims, on which the case can proceed.

Bowe is represented by Paul A. Kinne, of Gingras, Cates & Luebke, S.C., Madison, WI.

Landmark Federal Appeals Ruling Holds Sexual Orientation Discrimination Violates Title VII

Posted on: April 5th, 2017 by Art Leonard No Comments

The full bench of the U.S. Court of Appeals for the 7th Circuit, based in Chicago, substantially advanced the cause of gay rights on April 4, releasing an unprecedented decision in Kimberly Hively v. Ivy Tech Community College, 2017 WL 1230393, holding that Title VII of the Civil Rights Act of 1964, which applies generally to all employers with fifteen or more employees as well as many federal, state and local government operations, prohibits discriminating against a person because of their sexual orientation.  The text of the statute does not mention sexual orientation, so the interpretive question for the court was whether discriminating against somebody because they are lesbian, gay or bisexual can be considered a form of sex discrimination.

What was particularly amazing about the affirmative decision, the first to rule this way by a federal appeals court, was that the 7th Circuit is composed overwhelmingly of Republican appointees, many of whom were appointed as long ago as the Reagan Administration.  Although the lead opinion for the Circuit was written by Chief Judge Diane Pamela Wood, who was appointed by Bill Clinton, the 8-member majority of the 11-judge bench included more Republicans than Democrats.  Many of the judges in the majority could be generally characterized as judicial conservatives.

Wood’s opinion was joined by Frank Easterbrook (Reagan appointee), Ilana Rovner (George H. W. Bush appointee), Ann Claire Williams (Clinton appointee), and David F. Hamilton (the only Obama appointee on the Circuit). Richard Posner (Reagan appointee) wrote a concurring opinion.  Joel Martin Flaum (Reagan appointee) wrote a concurring opinion which was joined by Kenneth Francis Ripple (Reagan appointee).  The dissent by Diane S. Sykes (George W. Bush appointee) was joined by Michael Stephen Kanne (Reagan appointee) and William Joseph Bauer (Ford appointee).  Ripple and Bauer are senior judges who were sitting on the en banc hearing because they were part of the three-judge panel (with Judge Rovner) that ruled on the case last year.  The Circuit has 11 authorized positions, but there are two vacancies among the active judges, part of the Republican Senate’s legacy of refusing to confirm most of President Obama’s judicial appointees during his second term.

The Circuit’s decision to grant en banc review clearly signaled a desire to reconsider the issue, which Judge Rovner had called for doing in her panel opinion. Rovner then made a persuasive case that changes in the law since the 7th Circuit had previously ruled negatively on the question called out for reconsideration.  Those who attended the oral argument on November 30 or listened to the recording on the court’s website generally agreed that the circuit was likely to overrule its old precedents, the only mystery being who would write the opinion, what theories they would use, and who would dissent.

The lawsuit was filed by Kimberly Hively, a lesbian who was working as an adjunct professor at the college, which is located in South Bend, Indiana. Despite years of successful teaching, her attempts to secure a full-time tenure-track position were continually frustrated and finally her contract was not renewed under circumstances that led her to believe it was because of her sexual orientation.  Since Indiana’s state law does not forbid sexual orientation discrimination, and South Bend’s ordinance (which does forbid sexual orientation discrimination) would not apply to the state college, she filed suit in federal court under Title VII.  She represented herself at that stage.  The trial judge, Rudy Lozano, granted the college’s motion to dismiss the case on the ground that 7th Circuit precedents exclude sexual orientation discrimination claims under Title VII.

Hively obtained representation from Lambda Legal on appeal. The three-judge panel rejected her appeal, while two of the judges urged that the precedents be reconsidered.

Judge Wood found that several key Supreme Court decisions have broadened the meaning of “because of sex” in Title VII, to the extent that she could write that “in the years since 1964, Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman for Job A, or a man for Job B.” The broadening includes launching a complex law of sexual harassment, including same-sex sexual harassment, and discrimination against a person who fails to conform to “a certain set of gender stereotypes.”

As have many of the other judges who have written on this issue, Wood quoted from Justice Antonin Scalia’s opinion for the unanimous court in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the same-sex harassment case, in which, after noting that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” this did not mean that the statute could not be interpreted to apply to such a situation. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” Scalia wrote, “and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Woods found convincing Hively’s contention, argued to the court by Lambda Legal’s Greg Nevins, that two alternative theories would support her claim. The first follows a “comparative method in which we attempt to isolate the significance of the plaintiff’s sex to the employer’s decision: has she described a situation in which, holding all other things constant and changing only her sex, she would have been treated the same way?”  The second rests on an intimate association claim, relying on the Supreme Court’s 1967 ruling striking down state laws barring interracial marriages, Loving v. Virginia.  The Supreme Court held that a ban on interracial marriage was a form of race discrimination, because the state was taking race in account in deciding whom somebody could marry.  Similarly here, an employer is taking sex into account when discriminating against somebody because they associate intimately with members of the same sex.  After briefly describing these two theories, Wood wrote, “Although the analysis differs somewhat, both avenues end up in the same place: sex discrimination.”

Woods noted at least two rulings by other circuits under Title VII that had adapted Loving’s interracial marriage analysis to an employment setting, finding race discrimination where an employer discriminated against persons who were in interracial relationships, Parr v. Woodmen of the World Life Insurance Co., 791 F.2 888 (11th Cir. 1986), and Holcomb v. Iona College, 521 F.3d 130 (2nd Cir. 2008).  These citations were a bit ironic, since the 11th and 2nd Circuits have in recent weeks rejected sexual orientation discrimination claims under Title VII, in which the plaintiffs advanced the same analogy to support their Title VII claims.  These recent opinions were by three-judge panels that held themselves to be bound by prior circuit rulings.  Lambda Legal has already filed a petition for en banc review in the 11th Circuit case, and counsel for plaintiff in the 2nd Circuit case is thinking about doing the same.

Ultimately, Wood acknowledged, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’ The effort to do so has led to confusing and contradictory results, as our panel opinion illustrated so well.  The EEOC concluded, in its Baldwin decision, that such an effort cannot be reconciled with the straightforward language of Title VII.  Many district courts have come to the same conclusion.  Many other courts have found that gender identity claims are cognizable under Title VII.”

Woods recited the now well-worn argument about how it is a basic inconsistency in the law that a person can enter into a same-sex marriage on Saturday and then be fired without legal recourse for having done so when they show up at the workplace on Monday. That is still the state of the law in a majority of the states.

Wood acknowledged that this decision does not end the case. Because Hively’s original complaint was dismissed by the district court without a trial, she has not yet been put to the test of proving that her sexual orientation was a motivating factor in the college’s decision not to hire her or renew her adjunct contract.  And, what passed unspoken, the college might decide to petition the Supreme Court to review this ruling, although the immediate reaction of a college spokesperson was that the school – which has its own sexual orientation non-discrimination policy – denies that it discriminated against Hively, and is ready to take its chances at trial.

Judge Posner submitted a rather odd concurring opinion, perhaps reflecting the oddity of some of his comments during oral argument, including the stunning question posed to the college’s lawyer: “Why are there lesbians?” Posner, appointed by Reagan as an economic conservative and social libertarian, has evolved into a forceful advocate for LGBT rights, having satisfied himself that genetics and biology play a large part in determining sexual identity and that it is basically unfair to discriminate against LGBT people without justification.  He wrote the Circuit’s decision striking down bans on same-sex marriage in Indiana and Wisconsin in 2014.

In this opinion, he takes on the contention that it is improper for the court to purport to “interpret” the language adopted by Congress in 1964 to cover sexual orientation discrimination. After reviewing various models of statutory interpretation, he insisted that “interpretation can mean giving a fresh meaning to a statement (which can be a statement found in a constitutional or statutory text) – a meaning that infuses the statement with vitality and significance today.”  He used as his prime example judicial interpretation of the Sherman Antitrust Act of 1890, adopted “long before there was a sophisticated understanding of the economics of monopoly and competition.”  As a result of changing times and new knowledge, he observed, “for more than thirty years the Act has been interpreted in conformity to the modern, not the nineteenth-century, understanding of the relevant economics.” Basically, the courts have “updated” the Act in order to keep it relevant to the present.

He argued that the same approach should be brought to interpreting Title VII, adopted more than half a century ago. This old law “invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted.”  And, after reviewing the revolution in understanding of human sexuality and public opinion about it, he concluded it was time to update Title VII to cover sexual orientation claims, even though “it is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII.”  Although some of the history he then recites might arouse some quibbles, he was able to summon some pointed examples of Justice Scalia employing this method in his interpretation of the Constitution regarding, for example, flag-burning and an individual right to bear arms.

“Nothing has changed more in the decades since the enactment of the statute than attitudes toward sex,” wrote Posner, going on to recite the litigation history of the struggle for marriage equality that culminated in 2015 with the Supreme Court’s ruling in Obergefell v. Hodges.

Although it might sound odd at times as a judicial opinion, Posner’s concurrence is eminently readable and packed full of interesting information, including his list of “homosexual men and women (and also bisexuals, defined as having both homosexual and heterosexual orientations)” who have made “many outstanding intellectual and cultural contributions to society (think for example of Tchaikovsky, Oscar Wilde, Jane Addams, Andre Gide, Thomas Mann, Marlene Dietrich, Bayard Rustin, Alan Turing, Alec Guinness, Leonard Bernstein, Van Cliburn, and James Baldwin – a very partial list).”

This brought to the writer’s mind a famous paragraph in Supreme Court Justice Harry Blackmun’s opinion rejecting a challenge to the traditional anti-trust exemption for professional baseball, in which Blackmun included his own list of the greatest professional baseball players in history (compiled through a survey of the Supreme Court’s members and their young legal clerks).

Instead of pursuing Judge Wood’s line of reasoning, Posner was ready to declare that sexual orientation discrimination is a form of sex discrimination without such detailed analysis. “The most tenable and straightforward ground for deciding in favor of Hively is that while in 1964 sex discrimination meant discrimination against men or women as such and not against subsets of men or women such as effeminate men or mannish women, the concept of sex discrimination has since broadened in light of the recognition, which barely existed in 1964, that there are significant numbers of both men and women who have a sexual orientation that sets them apart from the heterosexual members of their genetic sex (male or female), and that while they constitute a minority their sexual orientation is not evil and does not threaten society.  Title VII in terms forbids only sex discrimination, but we now understand discrimination against homosexual men and women to be a form of sex discrimination; and to paraphrase [Oliver Wendell Holmes, Jr.], ‘We must consider what this country has become in deciding what that [statute] has reserved.’”

In his concurring opinion Judge Flaum took a narrower approach, noting that Title VII was amended in 1991 to provide that “an unlawful employment practice is established when the complaining party demonstrates that … sex … was a motivating factor for any employment practice, even though other factors also motivated the practice.” In other words, discrimination does not have to be “solely” because of sex to violate Title VII.  It is enough if the individual’s sex was part of the reason for the discrimination.  In light of this, Flaum (and Ripple, who joined his opinion) would look to the analogy with discrimination against employees in interracial relationships.  In addition, he noted, “One cannot consider a person’s homosexuality without also accounting for their sex: doing so would render ‘same’ and ‘own’ meaningless” in dictionary definitions that define homosexuality in terms of  whether somebody is attracted to persons of “the same” or “their own” sex.  Clearly, “sex” is involved when people are discriminated against because they are gay.

Judge Sykes’s dissent channeled scores of cases going back to the early years of Title VII and argued against the method of statutory interpretation used by the various opinions making up the majority. “The question before the en banc court is one of statutory interpretation,” she wrote.  “The majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion.  So does Judge Posner in his concurrence.  Neither is faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted.  The result is a statutory amendment courtesy of unelected judges.  Judge Posner admits this; he embraces and argues for this conception of judicial power.  The majority does not, preferring instead to smuggle in the statutory amendment under cover of an aggressive reading of loosely related Supreme Court precedents.  Either way, the result is the same: the circumvention of the legislative process by which the people govern themselves.”

Although Sykes conceded that sexual orientation discrimination is wrong, she was not ready to concede that one could find it illegal by interpretation of a 1964 statute prohibiting sex discrimination at a time when the legislature could not possibly have been intending to ban discrimination against LGBT people. As Posner pointed out, that issue wasn’t on the radar in 1964.  Thus, to Sykes, Bauer and Kanne, it was not legitimate for a court to read this into the statute under the guise of “interpretation.”

Speculating about the ultimate fate of this decision could go endlessly on. There are fierce debates within the judiciary about acceptable methods of interpreting statutes, and various theories about how to deal with aging statutes that are out of sync with modern understandings.

Posner’s argument for judicial updating allows for the possibility that if Congress disagrees with what a court has done, it can step in and amend the statute, as Congress has frequently amended Title VII to overrule Supreme Court interpretations with which it disagreed. (For example, Congress overruled the Supreme Court’s decision that discrimination against pregnant women was not sex discrimination in violation of Title VII.)  Posner’s approach will be familiar to those who have read the influential 1982 book by then-Professor (now 2nd Circuit Judge) Guido Calabresi, “A Common Law for the Age of Statutes,” suggesting that courts deal with the problem of ancient statutes and legislative inertia by “updating” statutes through interpretation to deal with contemporary problems, leaving it to the legislature to overrule the courts if they disagree.  This method is more generally accepted in other common law countries (British Commonwealth nations), such as Australia, South Africa, India and Canada, than in the United States, but it clearly appeals to Posner as eminently practical.

So far the Republican majorities in Congress have not been motivated to address this issue through amendments to Title VII, or to advance the Equality Act, introduced during Obama’s second term, which would amend all federal sex discrimination laws to address sexual orientation and gender identity explicitly. Perhaps they will be provoked to act, however, if the question gets up to the Supreme Court and the 7th Circuit’s view prevails.

With the possibility of appeals now arising from three different circuits with different views of the issue, Supreme Court consideration of this question is highly likely. Public opinion polls generally show overwhelming support for prohibiting sexual orientation and gender identity discrimination in the workplace, which might serve as a brake on conservative legislators who would otherwise respond adversely to a Supreme Court ruling approving the 7th Circuit’s holding.

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.