U.S. Magistrate Judge Michael E. Hegarty refused to dismiss a claim by a gay airline pilot that his former employer discriminated against him in violation of Title VII of the Civil Rights Act of 1964 by misrepresenting the reason for his discharge, thus making him virtually “unemployable” in the industry. Judge Hegarty’s May 11 ruling in Deneffe v. Skywest, Inc., 2015 U.S. Dist. LEXIS 62019, 2015 WL 2265373 (D. Colo.), appears to mark a further extension of the “gender stereotyping” theory under which federal courts have begun to find protection against discrimination for gay plaintiffs under Title VII’s ban on sex discrimination.
When Congress passed the Civil Rights Act in 1964, the House approved a floor amendment to add discrimination because of “sex” to the list of forbidden grounds of discrimination covered by the bill and the Senate acquiesced. Because it was added as a floor amendment and there was no extended debate, there is little in the legislative history to indicate what Congress intended to cover by adding “sex,” and during the early years of the law, both the Equal Employment Opportunity Commission and the federal courts concluded that Congress did not intend to forbid discrimination because of sexual orientation or gender identity.
This narrow view of sex discrimination began to erode in 1989, when the Supreme Court accepted the argument that discriminating against a person because of their failure to conform to “sex stereotypes” could be a violation of Title VII. In Price Waterhouse v. Hopkins, Justice William J. Brennan wrote for a plurality of the Court that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group,” and he wrote, “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Justice Brennan also used the word “gender” several times in the opinion when referring to the forbidden grounds of discrimination under Title VII.
Taking their cue from this decision, some lower federal courts began to reconsider the earlier view that Title VII could not be construed to protect gay or transgender people from employment discrimination, at least in cases where it was plausible to claim that they suffered discrimination because of failure to comply with gender stereotypes. Within the past few years, federal appeals courts have ruled that transgender plaintiffs could bring claims under both Title VII and the Equal Protection Clause, and the EEOC changed its position, at least regarding transgender discrimination claims, just a few years ago. This evolving view has been slower to endorse sex discrimination claims by gay employees, but Judge Hegarty’s May 11 ruling adopts an interesting theory.
In his amended complaint, wrote Hegarty, Federic Deneffe asserted that during many flights he piloted, “other pilots jokingly insinuated that male flight attendants were homosexual, referring to them by the nickname of ‘Susie.’ Deneffe once heard another pilot refer to male flight attendants as ‘the little faggots who bring us our coffee.’ Other male pilots also commented, ‘I am not getting laid this trip,’ and ‘I will make sure I double lock my room,’ when only male attendants were on a flight. Male pilots frequently made disparaging remarks about openly gay men in general, with comments such as ‘Freddie Mercury was so talented, it’s such a shame he’s gay.’”
Deneffe also alleged that “male pilots regularly engaged in banter about their heterosexual exploits. At least one pilot sent Deneffe text messages detailing his sexual exploits with a woman. Deneffe was conspicuously silent when his co-workers discussed their sexual activities with women, made homosexual jokes, or talked about their wives and children.’” Deneffe listed his same-sex partner as the beneficiary for his flight privileges with the airline when he was hired, and took one or two trips a month with his partner. He claimed that other pilots regularly saw him and his partner at the airport and on flights together, and that he had talked about his sexual orientation with a female pilot, who happened to be openly lesbian (and who made some adverse comments about Deneffe on an evaluation form).
Deneffe was astonished by his sudden termination, because he had passed a satisfactory review and had never been in an accident. His attempt to ascertain the reason for his discharge was unsuccessful, but when he applied to other airlines and authorized SkyWest to release his employee records as required by regulations, he was stunned to learn that the SkyWest form stated “Performance/Inability” and indicated he was “Ineligible for Rehire.” He was unsuccessful in gaining employment as a pilot, and was told by one airline recruiter that “with a termination like that, we’re not to take you” or words to that effect.
He sued under both Title VII and the Age Discrimination Act, but suffered dismissal of his discrimination claim regarding the discharge for reasons not mentioned in Judge Hegarty’s May 11 decision. However, the judge allowed him to file an amended complaint based on the statements in the employee records. SkyWest moved to dismiss the amended complaint, arguing that sexual orientation discrimination is not covered under Title VII and that the ban on employment discrimination would not extend to this situation in any event.
Judge Hegarty rejected both of SkyWest’s arguments.
Although the judge acknowledged that the 10th Circuit Court of Appeals, whose precedents would bind him, “has not recognized a Title VII claim for discrimination based on sexual orientation,” he found that “Deneffe’s Title VII claim is premised on Deneffe’s failure to conform to gender stereotypes,” a theory that had been recognized by the 10th Circuit in a case brought by a transgender plaintiff.
SkyWest argued that the complaint failed to state how Deneffe did not conform to male stereotypes.
“Deneffe counters that the following allegations support his claim,” wrote Hegarty. “(1) He did not take part in male braggodicio [sic] about sexual exploits with women as the other male pilots did; (2) he did not joke about gays as other male pilots did, (3) he submitted paperwork to SkyWest designating his male domestic partner for flight privileges, a benefit offered only for family members and domestic partners, and (4) he traveled on SkyWest flights with his domestic partner. The Court finds that these alleged facts, together with Deneffe’s allegation that the conduct by other male pilots was ‘regular,’ ‘frequent,’ and occurred during ‘many’ flights, suffice to state a plausible claim that the chief pilot submitted a negative PRIA employment reference based on Deneffe’s failure to conform to male stereotypes.”
In other words, Deneffe’s aloofness from the other pilots’ macho banter could be considered, together with the actions he took revealing his sexual orientation and the other pilots’ homophobic comments about flight attendants, as a form of gender stereotype nonconformity sufficient to get him past a motion to dismiss his Title VII claim.
Hegarty also found precedents supporting the claim that adverse job references can be considered a form of employment discrimination under Title VII. He pointed to a prior 10th Circuit ruling that “an act by an employer that does more than de minimis harm to a plaintiff’s future employment prospects can, when fully considering the unique factors relevant to the situation at hand, be regarded as an adverse employment action, even where plaintiff does not show the act precluded a particular employment prospect.”
Hegarty wrote that “determining a harmful, negative employment reference to be an adverse employment action is consistent with the substantive provisions of Title VII. Certainly, a negative employment reference could adversely affect an individual’s conditions or privileges of employment and/or deprive an individual of employment opportunities.” It is not necessary that somebody still have the status of an employee at the time when the adverse effect occurs, he concluded, finding that “the alleged adverse action by SkyWest of submitting PRIA forms (after Deneffe’s termination of employment) containing negative employment information that is distributed to potential employers” was sufficient to ground a discrimination complaint under Title VII.
Deneffe is represented by Rosemary Orsini of Berenbaum Weinshienk PC (Denver) and Subhashini Bollini of the Employment Law Group (Washington, D.C.).