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Posts Tagged ‘Title VII of Civil Rights Act of 1964’

Federal Appeals Court Upholds Constructive Discharge of Teacher Who Mis-Gendered Trans Students

Posted on: April 11th, 2023 by Art Leonard No Comments

A three judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit ruled on April 7 that the Brownsburg (Indiana) Community School Corporation did not violate Title VII of the Civil Rights Act of 1964 when it told a music teacher at the district’s high school that if he refused to comply with the district’s policy regarding names and pronouns for transgender students he should quit or would be fired.  Kluge v. Brownsburg Community School Corp., 2023 WL 2821871, 2023 U.S. App. LEXIS 8328 (7th Cir., April 7, 2023).

The teacher, John M. Kluge, protested the policy on religious grounds when it was first announced. He and three other teachers approached the high school’s principal, Dr. Bret Daghe, presenting a seven-page letter expressing their religious objections to “transgenderism,” arguing that the school “should not treat gender dysphoria as a protected status, and urged the school not to require teachers to refer to transgender students by the names or pronouns that the teachers deemed inconsistent with the students’ sex recorded at birth,” wrote Circuit Judge Ilana Rovner in her opinion for the majority of the panel.

The school maintained an official student database, called “Power-School,” which included names and gender markers, preferred pronouns and other data.  Kluge claims that Dr. Daghe told the teachers that he had resisted pressure to change the students’ names in Power-School, but that he “would make this change if it would resolve the teachers’ concerns regarding how to address transgender students,” Kluge later testified.  The other three teachers who had signed Kluge’s letter agreed to use the names and pronouns as shown in the Power-School database, but Kluge hanged tough, insisting that he had a right to assert his religious views and refuse to comply.  Somehow, Kluge walked away from the meeting thinking that he had Dr. Daghe’s permission to continue using students’ “legal names” and that “we would not be promoting transgenderism in our school.”

He was mistaken, according to Dr. Daghe, as the district leadership decided to require teachers to use the PowerSchool names and pronouns.  Transgender students could change their names and pronouns in PowerSchool by presenting two letters, one from a parent and one from a healthcare professional, regarding the need for changes.  Assistant Superintendent Dr. Kathryn Jessup explained in testimony that this fulfilled two goals: it established a clear rule for faculty members to follow, and “it afforded dignity and showed empathy toward transgender students who were considering or in the process of gender transition.”  The leadership considered it “important for transgender students to receive, like any other student, respect and affirmation of their preferred identity, provided they go through the required and reasonable channels of receiving and providing proof of parental permission and a healthcare professional’s approval.”

This policy was communicated to teachers by a guidance counselor using emails at the beginning of the 2017-18 school year, and Kluge was notified that that he would have two transgender students in his music classes.  He expressed shock, and interpreted the emails as being “permissive, not mandatory,” determined to use only “legal names” for his students.  He met with Dr. Daghe, once again raising his religious objections.  After consulting the Superintendent of Schools, Daghe told Kluge that he had three options:  comply with the policy, resign, or be suspended pending termination.  When he refused either to comply or resign, he was suspended and sent home.  When he came back to the school a few days later to meet with administrators, he was presented with a written directive requiring him to state either that he would or would not comply with the school’s rule.

Kluge responded by proposing an “accommodation” to his religious beliefs.  He wanted to be allowed to address all students by their last names and not use pronouns, and to have somebody else hand out the gender-specific uniforms for students in the orchestra.  This was agreed to, but in the long run, it didn’t work out because it became obvious to the students what was going on.  The transgender students felt demeaned and many of their classmates were upset as well.  Other teachers expressed concern.  Kluge slipped up at times and was inconsistent in his naming and pronoun practices.  The faculty advisor to the school’s “Equality Alliance Club” reported to Dr. Daghe that complaints about Kluge were frequently voiced at club meetings.  Parents of transgender students complained to the school in writing as well.  Non-transgender students reported that the way Kluge was acting was making them uncomfortable.  One transgender student was so upset that he ended up withdrawing from the orchestra program entirely.

This summary of what happened drastically truncates the lengthy and detailed narrative provided by Judge Rovner in her opinion, a factual record that led a majority of the appellate panel to conclude that the school had a legitimate basis to go back to Kluge at the end of the school year and inform him that the “accommodation” was not working, and that he would have to resign or he would be fired.  He resigned under protest and filed this lawsuit

Represented by lawyers from Alliance Defending Freedom (ADF), the conservative religious law firm, Kluge sued the Brownsburg school corporation in the Indiana federal district court, claiming violations of the Constitution and invoking the statutory ban on religious discrimination under Title VII.  District Judge Jane Magnus-Stinson dismissed Kluge’s constitutional claims and various other state law claims, and ruled against Kluge’s claim that his forced resignation violated his rights under Title VII, either as outright discrimination or as retaliation for his protest against the school’s policy.

Kluge appealed only his Title VII discrimination and retaliation claims, so the 7th Circuit decision does not address the constitutional claims.   Title VII makes it illegal for an employer to discriminate against an employee because of his religion, and requires employers to “reasonably accommodate” an employee’s religious beliefs and practices.  The duty of reasonable accommodation is limited by Supreme Court precedents, however.  An accommodation that would impose an “undue hardship” on the employer’s business cannot be required.  The statute also prohibits an employer from retaliating against an employee for engaging in activity protected under the statute.

The district court concluded that Kluge established a prima facie case of failure to accommodate his religious belief, but that the school had proven that Kluge’s naming/pronoun accommodation imposed an “undue hardship” on the school’s “business,” and the majority of the 7th Circuit panel agreed.

“As a public school,” wrote Judge Rovner, “Brownsburg’s ‘business’ is its constitutional and statutory charge to educate all students who enter its doors.”  The court described students as a “captive audience” because education is “compulsory.”  Students must attend public school unless their parents are willing to pay for private schools or make the time commitment for home schooling.  The court quoted from an earlier decision “noted in the First Amendment context”: “Children who attend school because they must ought not be subject to teachers’ idiosyncratic perspectives.”  It should be up to the politically accountable school boards (or in the case of this school district, the elected trustees of the education corporation), not the teachers, to determine issues about what goes on in the classrooms.  “At least the board’s views can be debated openly,” the court had written, “and the people may choose to elect persons committed to neutrality on contentious issues.  The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials.”

Here, the school claimed that Kluge’s naming practices, including the so-called last name accommodation, had imposed two undue hardships on the school: first, it “frustrated” the school’s efforts to “educate all students” because it “negatively impacted students and the learning environment for transgender students and other students as well”; and second, it exposed the school district to potential loss of federal funding and damages if transgender students filed discrimination claims with the federal government under Title IX, a law that prohibits discrimination because of sex against students at schools that receive federal funds.  At the time of this lawsuit, the 7th Circuit had recently ruled in a lawsuit by a transgender boy excluded from the boys’ restrooms in another Indiana school district, holding that this violated Title IX.  Thus, 7th Circuit precedent supported the school’s concern about potential liability if it allowed Kluge to continue his contested practices.

Judge Rovner declared, “A practice that indisputedly caused emotional harm to students and disruptions to the learning environment is an undue hardship to a school as a matter of law.”  The court also found that there was no other accommodation available in this case, because Kluge was the school’s only music teacher, so students could not be transferred to another classroom to be able to participate in the music program without having to deal with Kluge (and, the court commented, “if we assume that transfer to another classroom would not be equally stigmatizing”).

As to Kluge’s retaliation claim, the court found that he “failed to produce evidence that established a but-for causal link between protected activity and the adverse action, and so failed to make out a prima facie case of retaliation.”  The court found Kluge’s briefing on this point insufficient, failing to cite relevant evidence for his claim, for example, that he was subjected to a “hostile environment” because of his religious beliefs after he protested the naming policy during the summer of 2017.  And, of course, the school’s “undue hardship” defense would counter any liability for retaliation, because the court found that the school was justified in revoking the “accommodation” agreement, having correctly concluded that it was not working.

Judge Michael Brennan agreed with the majority of the panel on the retaliation claim, but he dissented from the ruling on direct Title VII liability, arguing that the religious accommodation claim “comes down to a fact-intensive inquiry: Did the School District demonstrate that Kluge’s gender-neutral accommodation of calling all student by only their last name causes undue hardship – that is, more than a de minimis cost?  The majority opinion says ‘yes,’ but it sidesteps Kluge’s countervailing evidence, failed to construe the record in his favor, and overlooks credibility issues on both sides, which are reserved for resolution by the factfinder.”  Brennan argued that there should have been a trial to determine whether Kluge’s “accommodation” had actually posed an undue hardship.  Judge Rovner’s opinion sharply disputed this, finding the record overwhelming supported the school’s decision to end the “accommodation agreement.”

This panel opinion may not be the last word on Kluge’s discrimination claim.  ADF has a practice of appealing any adverse ruling as far as they can take it, since it is a policy-driven organization that is dedicated to establishing maximum religious freedom through the courts.

This three-judge panel was made up entirely of judges appointed by Republican presidents.  Judge Rovner was appointed by President George H.W. Bush in 1992, while both Judge Brennan and the other judge on the panel, Amy St. Eve, were appointed by President Trump.  ADF may seek reconsideration by the full ten-judge 7th Circuit bench, which tips 7-3 in Republican appointees. (There is one vacancy in this Circuit, and President Biden has not announced a nomination for the vacant seat.)

ADF might alternatively directly seek Supreme Court review.  This term the Court is reconsidering the issue of religious accommodation in another case.  If ADF were to file a petition with the Court, is likely that the Court would delay deciding whether to grant the petition until it releases an opinion in the other case and if, as widely expected, the Court’s decision strengthens the accommodation requirement, to then send this case back to the lower courts for reconsideration in light of the new standard.

 

Sex Stereotype Theory Cannot Overcome Adverse 6th Circuit Precedent in Sexual Orientation Claim

Posted on: June 16th, 2018 by Art Leonard No Comments

Characterizing a lesbian plaintiff’s sex discrimination claim under Title VII and the Kentucky Civil Rights Act as a sexual orientation discrimination claim, Chief U.S. District Judge Joseph H. McKinley, Jr., granted an employer’s motion for partial dismissal, finding that 6th Circuit precedent from a decade ago expressly rejected using a sex stereotype theory to find sexual orientation discrimination actionable under Title VII or the Kentucky statute. Lindsey v. Management & Training Corporation, 2018 WL 2943454, 2018 U.S. Dist. LEXIS 98001 (W.D. Ky., June 12, 2018).

Terry Lindsey alleged that she was terminated because she is an African-American, noting that she and other African-American employees in management positions were either removed or encouraged to resign from management prior to her termination. She also alleged that she was terminated because she was seen by another employee with her female “significant other,” who is a former employee of the company.  Lindsey pointed to inconsistent enforcement by the company of its rule against co-workers forming romantic relationships, pointing out that the company “never took disciplinary action against employees who were engaged in opposite-sex relationships with other employees.  The company moved to dismiss the sex discrimination claim as well as a retaliation claim which had not been administratively exhausted prior to filing suit.

The company’s motion asserted that Lindsey had not pled a cognizable sex discrimination claim, as “the characteristic upon which she claims she was discriminated, her sexual orientation, is not a protected classification” under either Title VII or the Kentucky law, wrote Judge McKinley. One might argue that this mischaracterizes Lindsey’s claim. She is not alleged that she was discriminated because she is a lesbian, but rather she is being discriminated against because of the sex of the person she is dating, observing that the company treats same-sex and different sex relationships differently, thus having a policy based on sex.  But the court, without any discussion of the matter, accepts the company’s characterization of the claim, and comments, “The Sixth Circuit has categorically held that ‘sexual orientation is not a prohibited basis for discriminatory acts under Title VII,” citing Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006).  “Further,” he wrote, “the Sixth Circuit, in applying Title VII precedent to the KCRA, has held that the KCRA also does not protect individuals from discrimination based on sexual orientation,” citing Pedreira v. Kentucky Baptist Homes for Children, 579 F. 3d 722 (6th Cir. 2009).  “Lindsey’s complaint alleges that M & T took adverse action against her because of her same-sex relationship.  Because of the Sixth Circuit’s opinion in Vickers, this claim is foreclosed both under Title VII and the KCRA.”

But the judge acknowledges that there is some logic to viewing this as a sex stereotyping case, writing, “Lindsey’s arguments to the contrary, while foreclosed by Vickers, are not without some merit.  Title VII’s protection against sex discrimination allows for claims ‘based on gender nonconformance that is expressed outside of work,’” citing EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3 560 (6th Cir. 2018), and some earlier 6th Circuit cases allowing sex discrimination claims to be brought by transgender plaintiffs using a sex stereotype theory.  “If the court were simply required to apply this framework,” the judge continued, “Lindsey’s claim would likely survive.  Lindsey’s behavior that was at the root of the alleged discrimination (dating another woman) fails to conform to the stereotypical female behavior of dating men.  The Vickers court seemed to acknowledge that such claims based on sexual orientation discrimination fit within the framework for analyzing sex discrimination claims, stating that, ‘in all likelihood, any discrimination based on sexual orientation would be actionable under a sex stereotyping theory if this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.’  But the Vickers court removed claims based on sexual orientation from ever being put through this analytical framework by declaring that ‘a gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII,’” in this instance quoting the 2nd Circuit’s opinion in Dawson v. Bumble & Bumble, 398 F.3d 211 (2nd Cir. 2005).  In a footnote, Judge McKinley notes that Dawson “was recently overruled by Zarda v. Altitude Express, Inc., 883 F.ed 100 (2nd Cir. 2018).

Nonetheless, despite these developments since Vickers, Judge McKinley states that “because Vickers remains good law [citing EEOC v. Harris Funeral Homes], the court must dismiss Lindsey’s Title VII and KCRA claims for sex discrimination.”

Lindsey also tried to argue in opposition to the motion to dismiss that M&T is a federal contractor and thus bound not to discriminate because of sexual orientation as part of its contract with the federal government under Obama Administration Executive Order 13672, which has not been expressly rescinded by Trump. Judge McKinley notes that the complaint filed in this case “makes no mention of this Executive Order as a legal theory under which she is seeking relief,” nor could it, really, because the E.O. is only enforceable administratively within the department with which the employer has its contract.  There is no general right for an employee to sue an employer in federal court to enforce a provision in a contract between the employer and the government.  And, of course, raising new legal theories that were not mentioned in a complaint in opposition to a dismissal motion just does not work as a matter of civil procedure.

However, Judge McKinley may not have read Harris Funeral Homes closely enough.  He cited it for the proposition that Vickers remains “good law” in the 6th Circuit, but the paragraphs in Harris dealing with the Vickers precedent may lead one to doubt whether Vickers remains on such solid ground as circuit precedent as Judge McKinley believes.  In Harris, admittedly a gender identity rather than a sexual orientation case, the court cast doubt on the viability of the Vickers panel’s narrow approach to the sex stereotyping theory, citing to the earlier circuit gender identity cases of Smith v. City of Salem and Barnes v. City of Cincinnati, which had taken a broader view of sex stereotyping theory than the Vickers panel had embraced.  (The Harris panel criticized Vickers for engrafting an additional interpretive test to the theory that went beyond what the Supreme Court had done in the seminal sex stereotyping case of Price Waterhouse.) Furthermore, of course, the 2nd Circuit case on which Vickers relied, Dawson, has been overruled in Zarda, as Judge McKinley noted.  Which is a long way around to saying that if he were willing to stick his neck out, there was sufficient diversity of approach in 6th Circuit sex discrimination precedents for McKinley, had he been so inclined, to decline to dismiss the sex discrimination claim.

It is unfortunate that Lindsey is apparently litigating pro se, because this seems like the kind of case that might be used to persuade the 6th Circuit to abandon Vickers and, in light of the broader view of sex stereotyping and flexibility in interpreting “sex” in Title VII exhibited in Harris, to adopt an interpretation that could encompass Lindsey’s claim.

 

Court Recognizes Gender Dysphoria Discrimination Claims under Americans With Disabilities Act

Posted on: May 19th, 2017 by Art Leonard No Comments

For the first time, a federal court has recognized that individuals suffering from gender dysphoria are entitled to protection against workplace discrimination under the Americans with Disabilities Act (ADA), a federal law that requires employers to reasonably accommodate employees’ disabilities. The May 18 ruling by U.S. District Judge Joseph F. Leeson, Jr., accepted an argument by attorneys for Kate Lynn Blatt, a transgender woman, that a provision in the ADA excluding protection for “gender identity disorders” should be narrowly construed to avoid a potential violation of the Equal Protection Clause.  Blatt v. Cabela’s Retail, Inc., 2017 U.S. Dist. LEXIS 75665 (E.D. Pa.).

Blatt, who is also alleging sex discrimination by her employer, Cabela’s Retail, Inc., was diagnosed with gender dysphoria in October 2005. She alleges that her gender dysphoria “substantially limits one or more of her major life activities, including, but not limited to, interacting with others, reproducing, and social and occupational function.”   The ADA provides protection for people suffering from physical or mental impairments that substantially limit one or more of their major life activities.

Blatt claims that shortly after she was hired by Cabela’s in September 2006, she began to experience discrimination, culminating in her termination in February 2017. The court’s decision does not provide much factual detail, because it is narrowly focused on Cabela’s motion to dismiss the portion of Blatt’s complaint that relies on the ADA.

Part of the opposition to the ADA in Congress in 1990 focused on the possibility that the proposed law could be interpreted to prohibit discrimination against sexual minorities – gays, lesbian, bisexuals, and transgender people – on the theory that “abnormal” sexuality was a “disability” within the meaning of the statute. To combat this argument, the bill was amended to provide that “homosexuality and bisexuality are not impairments and as such are not disabilities under this Act.”  The provision goes on to say that the term “disability” “shall not include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”  It also excludes protection for people afflicted by “compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs.”

This provision has long been considered to exclude any protection for transgender people related to their gender identity under the ADA. During the debate over the bill, it was made clear that this would not deny protection to transgender people who suffer from other disabling conditions, such as blindness, deafness and the like, not related to their gender identity.

Cabela’s asked the court to dismiss the two ADA counts of Blatt’s four-count complaint: failure to accommodate her gender dysphoria, and retaliation against her for reporting discrimination and requesting accommodations for her disability. Cabela’s argued that because of the exclusionary provision, any claim related to Blatt’s gender identity was excluded from coverage.  Cabela’s was not seeking in this motion to dismiss Blatt’s sex discrimination claims under Title VII.

Blatt’s attorneys countered with the argument that denying protection for a disability without a rational justification would violate Blatt’s right to equal protection of the laws under the 14th Amendment, but that the court could avoid having to consider the constitutionality of the statute by interpreting it to cover Blatt’s claims.

Judge Leesom accepted Blatt’s argument, finding that there is a “fairly possible” interpretation of the exclusionary provision, “namely, one in which the term gender identity disorders is read narrowly to refer to only the condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.”

Leesom breaks down the text of the exclusion into “two distinct categories: first, non-disabling conditions that concern sexual orientation or identity, and second, disabling conditions that are associated with harmful or illegal conduct. If the term gender identity disorders were understood, as Cabela’s suggests, to encompass disabling conditions such as Blatt’s gender dysphoria, then the term would occupy an anomalous place in the statute, as it would exclude from the ADA conditions that are actually disabling but that are not associated with harmful or illegal conduct.  But under the alternative, narrower interpretation of the term, this anomaly would be resolved, as the term gender identity disorders would belong to the first category described above.”

The judge found that this interpretation was consistent with controlling precedents in the 3rd Circuit, which covers the federal courts in Pennsylvania.  The 3rd Circuit Court of Appeals has endorsed the view that the ADA, as “a remedial statute, designed to eliminate discrimination against the disabled in all facets of society, must be broadly construed to effectuate its purposes.”  This requires a narrow reading of any exclusionary provisions.  This is also consistent with 2008 Amendments to the ADA that emphasized the Congressional purpose to allow a liberal interpretation of the concept of disability so as to provide maximum protection against unjustified workplace discrimination.

Leesom held that because a narrow interpretation of the exclusionary provision would avoid raising the constitutional equal protection question, it was his “duty to adopt it,” and the motion to dismiss should be denied.

This ruling does not necessarily mean that Blatt will ultimately win her case, but it will remove the employer’s argument that her case cannot be brought under the ADA.   Even if she had lost this motion and suffered dismissal of her ADA claim, Blatt could still litigate a sex discrimination claim, as the 3rd Circuit has accepted the argument that anti-transgender discrimination may be attacked as sex discrimination under Title VII by using the sex-stereotype theory that was approved by the Supreme Court in 1989 in the Price Waterhouse v. Hopkins case.  But finding ADA coverage is very important, because that statute imposes a duty of reasonable accommodation to enable an employee with disabilities to work, while Title VII does not impose any gender-related accommodation requirements other than, arguably, some accommodation to pregnancy and childbirth.  The ADA also has provisions governing medical testing and confidentiality of medical information, which may be useful for individuals dealing with gender dysphoria as well.

Blatt is represented by Sidney L. Gold, a Philadelphia lawyer, with assistance from the Civil Justice Clinic of Quinnipiac University School of Law, as well as Neelima Vanguri, an attorney at Gold’s law firm.

Oregon Federal Court Refuses to Dismiss Title VII Retaliation Claim by Lesbian Employee

Posted on: August 25th, 2014 by Art Leonard No Comments

U.S. District Judge Michael McShane ruled on August 21 that a lesbian former employee could sue a hospital under Title VII of the federal Civil Rights Act for 1964 for retaliatory discharge, even though the complaints she claims to have made before her discharge concerned sexual orientation discrimination.  Bennefield v. Mid-Valley Healthcare, 2014 U.S. Dist. LEXIS 116554 (D. Or.).  Title VII outlaws discrimination because of sex, but federal courts have generally held that this does not include sexual orientation discrimination. While finding that the plaintiff had not stated valid Title VII claims of discrimination and retaliation because of religion, and noting that the plaintiff had withdrawn her sexual orientation discrimination claim under Title VII, McShane’s ruling on the retaliation claim preserved the court’s federal question jurisdiction, which also extends to supplementary claims under the Oregon Whistleblower statute and the state’s human rights law, which does forbid sexual orientation discrimination.

The plaintiff, Stephanie Bennefield, began working at Mid-Valley on May 2, 2011.  During her probationary period, she came out to many co-workers as a lesbian.  Bennefield alleges that one co-worker created a hostile work environment for Bennefield after learning that she was a lesbian, including referring to her as a “disgusting lesbian” and a “stupid lesbian” and becoming uncooperative in their work, including provoking Bennefield to walk out of the operating room in disgust due to her refusal to cooperate.  Bennefield claims to have made numerous informal complaints to supervisors, but it was after she made a formal complaint to the Human Resources Department that she was notified of her discharge.  One comment by this hostile employee referring to religion was the basis for Bennefield’s claim of religious discrimination, which Judge McShane did not find persuasive.

Bowing to the fact that federal courts generally do not interpret Title VII’s sex discrimination ban to extend to sexual orientation discrimination, Bennefield agreed to dismissal of her Title VII sexual orientation discrimination claim.  Ultimately, the court’s continued jurisdiction over her case turned on whether her Title VII retaliation claim was valid.  The Hospital contended that her supervisor had decided to discharge her before she filed her formal complaint, and the supervisors disavowed having received any informal complaints from Bennefield concerning the conduct of this co-worker, but those are factual disputes to be resolved at trial if Bennefield has stated a cause of action sufficient to survive the hospital’s summary judgment motion.  The sticking point was in deciding whether Title VII’s retaliation provision extends to dismissal for complaining about sexual orientation discrimination.

The statute, by its terms, prohibits an employer from retaliating against an employee “because he has opposed any practice made an unlawful practice by this subchapter.”  42 USC sec. 2000e-3(a).  On its face, this would suggest that complaints about discriminatory conduct that is not itself forbidden by Title VII could not provide the foundation for a Title VII retaliation claim.  But Judge McShane noted that courts – and particularly the 9th Circuit, whose rulings are precedential for the district court in Oregon – had been willing to extend the protection of this provision to employees who believed in good faith that they were complaining about conduct that violates Title VII.  The question would be whether the plaintiff held a “reasonable belief” to that effect.

“Defendants… appear to conclude that mistakes of law cannot support a Title VII retaliation claim,” he wrote.  “I think that argument goes too far.  An employee may bring a retaliation claim even if the employee makes a mistake of law in thinking that the employer engaged in prohibited conduct,” citing Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1994).  “Whether the error is one of fact or law is irrelevant, so long as the mistake is made in good faith,” he continued, citing Jurado v. Eleven-Fifty Corp., 813 F.2d 1406 (9th Cir. 1987).  “Title VII is construed broadly, and ‘this directive applies to the reasonableness of a plaintiff’s belief that a violation occurred, as well as to other matters.’  Although the reasonableness prong is an objective standard, courts must take into account ‘the limited knowledge possessed by most Title VII plaintiffs about the factual and legal bases of their claims.’”

Judge McShane does not mention, but could well have done, that public opinion polls show that a majority of the public incorrectly believes that anti-gay employment discrimination is illegal under Title VII, even though most federal courts construe Title VII otherwise and most states have not banned sexual orientation discrimination in employment.  This suggests that many employees – especially those whose job does not require them to keep up with legal issues – assume that anti-gay discrimination is unlawful, and that they may expect protection against retaliation if they complain to a supervisor about such discrimination.  The situation is complicated in a state like Oregon, where the state forbids sexual orientation discrimination and employees may presume that they are protected so long as their complaint concerns conduct that is unlawful, regardless whether the anti-discrimination law in question is state law or federal law.  Thus, Bennefield was complaining about unlawful discrimination, but it was not discrimination made expressly unlawful by Title VII.

“That discrimination based on one’s sexual orientation turned out to not be prohibited under Title VII does not make Bennefield’s belief objectively unreasonable,” wrote McShane.  In making this conclusion, I take into account ‘the limited knowledge possessed by most Title VII plaintiffs about the factual and legal bases of their claims,’” again quoting from a 9th Circuit opinion.  McShane also rejected the defendant’s argument that Bennefield could not demonstrate that her discharge was due to a complaint that she filed after her supervisor had already decided to discharge, because Bennefield had alleged numerous informal complaints predating that decision.  He also noted that Bennefield’s pleadings contradict the employer’s contentions about her deficiencies as an employee, creating a material fact issue that it would be improper to resolve on summary judgment.  “Viewed in the light most favorable to Bennefield,” he concluded on this point, “she has met her burden of demonstrating defendants’ proffered reasons for firing her were pretextual.”

Bennefield is represented by Carl Lee Post, Cynthia J. Gaddis and Daniel J. Snyder of the Law Offices of Daniel Snyder in Portland, Oregon.  Judge McShane is the first openly-gay person to serve as a U.S. District Judge in the District of Oregon, and recently rendered the ruling holding Oregon’s ban on same-sex marriage unconstitutional.  Because the state decided not to appeal his ruling, Oregon recently became a marriage equality jurisdiction.