The First Circuit Court of Appeals answers this question in her 60-page opinion, upholding a $700,000 judgment against the Providence Rhode Island Fire Department in Franchina v City of Providence. This isn’t just any harassment case. The firefighter-plaintiff is/was a woman and a lesbian. Now, you may remember that Title VII does not explicitly prohibit discrimination based on sexual orientation. The EEOC’s position is that discrimination “because of sex” (in Title VII language) includes sexual orientation discrimination. The US Supreme Court recently declined to hear a case on this very issue. But this case isn’t only (or even primarily) about harassment based on sexual orientation. It’s a sexual harassment and sexual (orientation) harassment claim — oh and a retaliation claim too. This type of claim has come to be known as a “Sex-Plus” Harassment claim. What do you need to prove such a claim? What did this specific case involve? Read on to find out more…
(images from dailymail.co.uk and providenceri.gov)
I’m going to answer the questions I raised in reverse order. Simply put, what happened? There just isn’t enough space to get into all the facts (you can find the court’s lengthy opinion here if you are interested) so I’ll give you a very condensed version.
Ms. Franchina started working as a firefighter with the North Main Street Fire Station in 2002. Between 2002 and 2006 she not only experienced no problems, but moved up the ranks quickly, receiving numerous commendations. In 2006 she was moved to a different fire station and ultimately was promoted to a Rescue Lieutenant position–and the troubles began. In particular one firefighter with a history of sexually harassing female firefighters started in with her immediately, asking her if she was a lesbian, offering to impregnate her, walking in on her while she was changing clothes in her personal quarters, wearing only his boxers, refusing to leave when requested to do so. The Fire Chief wrote up a formal complaint against him. Once word spread about the firefighter’s disciplinary hearing other firefighters joined. The firefighter responsible for cooking the others’ meals first would not cook for Ms. Franchina. When told he had to, he doctored her food, causing her gastrointestinal problems. Other firefighters refused to take orders from her even though she was their superior. A member of her team flung blood and brain matter of a suicide attempt victim at her. Her team members regularly called her “bitch”, “cunt” and “Frangina”, either out loud or by writing the epithets on a group white board in one of the common areas of the station house. Male firefighters spat on and shoved her regularly. Evidence also showed that other female firefighters were subjected to harassment, except for those who were willing to sleep with the male firefighters. I could go on, but you probably get the idea.
With the exception of the one complaint filed by the Fire Chief, no one took any steps to discipline any of the male firefighters involved in the harassment/retaliation. After each complaint, the team members stepped up the behavior and made her life so miserable that she ultimately left in October 2010, having been diagnosed as permanently disabled with PTSD. For anyone who wants to question whether the Providence Fire Department created a hostile work environment, please, read the opinion. I have hardly scratched the surface as to everything Ms. Franchina endured.
At the conclusion of Ms. Franchina’s Title VII sexual harassment and retaliation claims, the jury awarded her front pay, and damages for emotional distress. The City appealed, advancing all kinds of arguments. Let me just say that I admire the City’s moxie and arguable creativity. I admire even more the First Circuit’s rejection of all of those arguments.
OK, so what’s a sex-plus harassment/discrimination claim? What is needed to prove it? Here is the court’s answer to the first question: “In short, “sex-plus claims” are a flavor of gender discrimination claims where ‘an employer classifies employees on the basis of sex plus another characteristic.” citing Chadwick v. WellPoint, Inc., 561 F.3d 38, 43 (1st Cir. 2009). The court ruled that a plaintiff bringing such a claim must prove that sex was a motivating factor, not the motivating factor. In other words the employee does not have to show that his/her sex was the only motivating factor. As long as sex was one factor, regardless of whether s/he also alleges discrimination based on another characteristic, s/he can prevail in a sex-plus discrimination/harassment claim-even if others of the opposite sex who had the same “plus” characteristic have not suffered the same discrimination. For example, the City argued that Ms. Franchina would have to prove that other gay men had suffered similar discrimination. The court rejected that argument out of hand (and pointed out that there was no evidence of gay male firefighters on the force).
The court also addressed the City’s argument that her claim was really one of sexual orientation discrimination, which, it says, not prohibited under Title VII. The court wasn’t having that either. The court cited a litany of evidence to show that the harassment and hostile work environment were at least as much motivated by her sex as by her sexual orientation.
This case provides a number of important lessons to employers. Perhaps the court says it best: “The abuse Lori Franchina suffered at the hands of the Providence Fire Department is nothing short of abhorrent and, as this case demonstrates, employers should be cautioned that turning a blind eye to blatant discrimination does not generally fare well under anti-discrimination laws like Title VII. “
Need I say anything more? I didn’t think so. See you back here next week.
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