US Judge Embraces EEOC Equating of Sexual Orientation, Sex Discrimination     - Gay City News | Gay City News US Judge Embraces EEOC Equating of Sexual Orientation, Sex Discrimination     - Gay City News | Gay City News
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US Judge Embraces EEOC Equating of Sexual Orientation, Sex Discrimination    

BY ARTHUR S. LEONARD | At last, a federal district judge has expressly relied on the July 15 ruling from the Equal Employment Opportunity Commission that sexual orientation discrimination claims can be brought under Title VII of the Civil Rights Act of 1964.

US District Judge Myron H. Thompson of the Middle District of Alabama, ruling on October 29, rejected the recommendation of a federal magistrate judge that a sexual orientation discrimination complaint under Title VII be dismissed on jurisdictional grounds. Thompson determined that the EEOC was correct when it ruled that sexual orientation discrimination is a form of sex discrimination under Title VII.

Unfortunately, that conclusion did no good for the plaintiff, Roger Isaacs, because the court found that his factual allegations included neither direct nor indirect evidence of discriminatory intent in his firing or his treatment by his employer.

Alabama district judge relies on July ruling, but finds plaintiff’s factual claims lacking

Isaacs, an Alabama gay man, worked for Felder Services as a dietician for about six months. Assigned to work at Arbor Springs Health and Rehabilitation Center under a contract that Felder had with that facility, Isaacs claimed he was subjected to a discriminatory hostile environment there. When he brought his complaint to Felder, the employer asked Arbor to investigate and report back.

Isaacs, meanwhile, became the object of an internal investigation at Felder for submitting unauthorized expenses for reimbursement. One of his assignments included periodic trips to Florala, Alabama, and, having suffered an injury in a car accident, he asked for permission “for a man he identified as his brother but who was actually his husband to drive him to Florala, and for the two to stay overnight there,” Judge Thompson wrote. A dispute over whether the expenses for his husband were authorized got bigger when he also sought reimbursement for taking his mother along.

In the end, the investigation concluded that Isaac was submitting unauthorized expenses, and Felder’s human resources director received the results of Arbor’s investigation of Isaacs’ harassment allegations, which found his charges to be unsubstantiated.

The human resource director then brought the conclusion of the expenses investigation to Felder’s president and they decided to terminate Isaac “based on the improper reimbursement requests.”

Isaacs asserted Title VII discrimination claims on the basis of his sex, gender non-conformity, and sexual orientation, hostile environment sexual harassment, and retaliation for his allegations of harassment at Arbor. Felder’s motion for summary judgment was referred to a magistrate judge, who recommended granting the company’s motion across the board. The magistrate judge specifically asserted that the sexual orientation claim could not be made under Title VII.

Judge Thompson granted summary judgment to the company on all claims, as well, but some of his reasons were different. Most importantly, he rejected the contention that a sexual orientation discrimination claim could not be brought under Title VII.

Noting that the 11 Circuit Court of Appeals, which has jurisdiction over the district court in Alabama, has not ruled on the question of whether sexual orientation discrimination is sex discrimination under Title VII, Thompson wrote, “This court agrees instead with the view of the Equal Employment Opportunity Commission that claims of sexual orientation-based discrimination are cognizable under Title VII.” He specifically pointed out that the EEOC in its July ruling pointed to an 11th Circuit precedent that discriminating against an employee based on an interracial marriage or association was a form of race discrimination. By analogy, Thompson concluded that discrimination based on a same-sex marriage or same-sex associations is sex discrimination. Thompson also noted that as far back as the early 1990s the Hawaii Supreme Court ruled that state’s ban on same-sex marriage was sex discrimination.

Gender nonconformity, Thompson concluded, would also support a claim of sex discrimination.

“To the extent that sexual orientation discrimination occurs not because of the targeted individual’s romantic or sexual attraction to or involvement with people of the same sex, but rather based on her or his perceived deviations from ‘heterosexually defined gender norms,’ this, too, is sex discrimination, of the gender-stereotyping variety,” he wrote in an analysis in line with Supreme Court and other federal court rulings on “sex stereotyping” going back to 1989.

Despite Thompson’s openness to the theory of Isaac’s case, he was unsympathetic to the facts before him. The plaintiff’s allegations, he found, failed to allege facts that would give rise to an inference that he was discharged because of his sexual orientation, and he agreed with the magistrate judge that the factual allegations were also insufficient to support Isaacs’ hostile environment and retaliation claims against Felder.

Thompson’s decision is apparently the first by a federal district judge to rely on the EEOC’s July decision to hold affirmatively that sexual orientation discrimination claims, if supported by sufficient factual allegations, can be brought under Title VII. Since Felder won its motion for summary judgment, there would seem to be no reason for it to seek review of at the 11th Circuit, but the issue might get there if Isaacs were to appeal. He is represented in this lawsuit by Benjamin Howard Cooper of Cooper Law Group LLC, Birmingham, Alabama.

One Response to US Judge Embraces EEOC Equating of Sexual Orientation, Sex Discrimination    

  1. Pingback: US Judge Embraces EEOC Equating of Sexual Orientation, Sex Discrimination | Daily Queer News

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