Suppose one of your employees complains that co-workers, believing him/her to be homosexual, are harassing him/her. You look into the complaint, but you kind of drop the ball and nothing is really done. The co-workers, having found out about the complaint, step up the harassment. You also learn that the complainant may have violated a company rule. You issue a written warning, and ultimately you terminate the complaining employee. Fast forward a few months. Now you have been sued, alleging sex discrimination and retaliation in violation
of Title VII. (Assume the State in question does not have anti-discrimination laws that provide more protection than Title VII.) Title VII does not say explicitly prohibit discrimination based on sexual orientation. Your company therefore cannot be liable for sex discrimination, right? Moreover, you can’t be liable for retaliation, because complaining about sexual orientation discrimination is not protected under Title VII, right? So, you have nothing to worry about, right? Not so fast! Read on and learn why…
The facts in our hypothetical actually did occur. The case is Burnett v Union Railroad, (Case No. 17-101 Western District of Pennsylvania 6/26/17). The plaintiff in this case, Michael Burnett, suffered pervasive harassment based on rumors that he was gay. (In fact he is not, but that is really beside the point) The harassment included without limitation derogatory names, and graffiti on trains . Mr. Burnett complained and his co-workers, taped to his locker a Hurt Feelings Memo, offering hugs to anyone needing them. Mr. Burnett was then told he was being suspended pending investigation. Only later was he told that the investigation involved him stopping a train 60 feet past the permissible point. Ultimately, he was fired.
Mr. Burnett sued, alleging sexual harassment and discrimination and retaliation in violation of Title VII. In his lawsuit against Union Railroad, Mr. Burnett alleged that other employees who had committed more serious infractions were disciplined far less harshly. In its motion to dismiss Union Railroad argued that Mr. Burnett failed to state a cognizable Title VII claim, because sexual orientation is not a protected category under Title VII. Add to that, the District Court of the Western District of PA is in the Third Circuit. Why does that matter? The Third Circuit is one of those circuits that has specifically found that Title VII as written does not prohibit sexual orientation discrimination. Nonetheless, the court denied Union Railroad’s motion to dismiss, and specifically found that Mr. Burnett had in fact stated a cognizable claim and could proceed. Wait, what? If Title VII doesn’t say it prohibits sexual orientation discrimination, and if the Third Circuit says it doesn’t, then how is this plaintiff allowed to move forward with a sexual orientation discrimination lawsuit under Title VII?? If you are asking that question, you get points for asking a really good one. Here’s the answer:
While Title VII does not explicitly prohibit sexual orientation discrimination, discrimination/harassment against an employee that does not conform to gender stereotypes is prohibited. The US Supreme Court said so in Price Waterhouse v Hopkins 490 U.S. 228 (1989). That case involved allegations by female accountant passed up for partnership for not fitting the firm’s idea of how female employees should look and act. This case and others after it provide the basis for Mr. Burnett’s claim, which, at least technically, is not a sexual orientation discrimination claim.
You see, Mr. Burnett didn’t allege that anyone harassed him because he was gay, (in large part, I am assuming, because he really wasn’t). He did allege that he was harassed because he didn’t conform to gender stereotypes, specifically that men should be aggressive, assertive and slow to complain. The perception that he was gay flowed from the application of the stereotype as to how men should look and act, and because Mr. Burnett presumably did not act in accordance with that stereotype. The court therefore found that Mr. Burnett did in fact state a valid claim for sexual discrimination and for retaliation. Since discrimination against someone who does not conform to gender stereotypes is prohibited under Title VII, Mr. Burnett’s complaints were protected. Since his complaints were protected, all actions taken against him afterward — up to and including his termination of employment–could, if supported by evidence, form the basis of a valid retaliation claim.
Now, I do want to stop and point out something else that, in my humble opinion is often overlooked in these types of cases. Union Railroad argued that Title VII does not prohibit sexual orientation discrimination. That was the basis for its motion to dismiss. But what about what Union Railroad didn’t say? Yes, I know there are many, many things it didn’t say. I mean it didn’t say that it was visited by aliens from Mars, but so what? I really have something more specific and relevant in mind here, though, so, are you ready? Here it is: Nowhere did Union Railroad even try to deny that Mr. Burnett’s co-workers in fact harassed him based on perceived sexual orientation. They only argued whether such behavior is technically prohibited under Title VII. Sometimes that type of argument is a winning one. In my humble opinion however, if you are an employer and an employee comes to you with similar allegations you should take the complaint as seriously as any other discrimination/harassment allegation and discipline accordingly. I’m thinking that right about now someone at Union Railroad is probably wishing they had done so.
Let’s end here for now. See you next week.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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