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Openly gay female officer advances Title VII sexual orientation bias, gender stereotyping claims

By Kathleen Kapusta, J.D.

The Title VII sex discrimination claims of an openly gay police officer, who alleged the department’s policies on transporting, supervising, and monitoring female prisoners failed to protect LGBTQ officers and placed her in compromising positions, survived her employer’s motion to dismiss, a federal district court in New York ruled, finding she could proceed with both her gender stereotype and sexual orientation discrimination claims. And while her retaliation claim also survived, her hostile work environment claim did not (Crews v. City of Ithaca, March 21, 2018, D’Agostino, M.).

Hired in 2007, the officer, who never conformed to sex stereotypes, claimed that when in full uniform, some of her colleagues commented that she looked like a “bus driver” while others used nonverbal cues and behavior to exclude her. She also claimed that when she was just starting, an officer posted an altered image of the “McLovin driver’s license” (the name listed on a fake identification of a character in the movie Superbad) in the men’s locker room that replaced McLovin’s face with hers.

Policy changes. In 2011, the department modified its policies so that whenever possible, officers of the same gender as the prisoner would transport, supervise, and search the prisoner. This, the officer alleged, changed her duty requirements because the department had an overwhelming male staff and an above average number of female prisoners and thus she was required to transport, supervise, and monitor these prisoners more often than male officers. She claimed this placed her in compromising situations as, for example, when one female prisoner threatened to fabricate sexual harassment allegations, stating “[h]ey big gay woman, you want some of this? I’m gonna make it up that you did something to me.”

After that incident, the officer regularly complained that the policies failed to protect LGBTQ officers. In May 2015, she filed a written complaint stating that the policies were discriminatory because they denied her the same protections the department afforded to male officers. After that complaint, she claimed she began to experience retaliation such as having her beat assignment changed.

Disciplined. In July, she told a sergeant that from a sexual orientation standpoint, she was in the same position as a heterosexual male officer, complained about being forced into an inordinate amount of physical encounters with female prisoners, and expressed concern that her beat had been changed because of her written complaint. The sergeant accused her of insubordination and she later received a notice of disciple (October notice) requiring her to forfeit 16 hours of vacation time.

She received a second notice of discipline in July 2016 when she broke down in tears because she thought she had been called in to search a female prisoner, when there were multiple male officers present, to highlight her gender nonconformity in front of her peers. She was also accused of using the “f-word” during a discussion with a sergeant. As a result of this notice, she was required to forfeit 32 hours of vacation time.

Adverse action. Moving to dismiss her Title VII sex discrimination claims, the department first argued that she failed to allege any adverse actions resulting from the discrimination and that even if the policies were discriminatory, the disciplinary actions taken against the officer were not because of the policies but because she complained about them. Disagreeing, the court pointed out that she alleged the policies resulted in her having to spend significantly more time performing custodial tasks because of the gender disparity in the police force and required her to perform physical searches of female prisoners during these temporary reassignments. Moreover, said the court, the loss of vacation time for the disciplinary notices constituted an adverse action.

BFOQ defense. The department also argued that the discrimination claims should be dismissed because it had a bona fide occupational qualification protecting it from liability. The court, however, found that the validity of a BFOQ defense could not be established on the pleadings as the department could not show the policies were not discriminatory or that there was no reasonable alternative. Further, even if the language of the policies was compliant with Title VII, the manner in which they are enforced might not be, said the court, noting that to reach the merits of the BFOQ defense, it would have to determine how the department decided to adopt the policies along with what, if any, alternatives existed. “Although it could eventually be clear that the Search and Jail Policies are a legitimate BFOQ, this determination can only be made after discovery with a complete record in a motion for summary judgment,” the court stated.

Gender stereotype discrimination. Also rejected was the department’s assertion that the officer failed to allege any facts establishing discrimination based on failing to conform to gender stereotypes and that her claims of gender stereotype discrimination were intertwined with sexual orientation discrimination. Rather, she alleged that in June 2016, she was called in to search a female prisoner in order to highlight her gender nonconformity and that as a result of not performing the search, she was punished through the July notice. This allegation was sufficient to plausibly allege discrimination against a protected class, said the court, denying the department’s motion to dismiss.

Sexual orientation discrimination. And while the department argued that Title VII does not protect against discrimination based on sexual orientation, the court pointed out that on February 26, 2018, an en banc Second Circuit, in Zarda v. Altitude Express, Inc., abrogated past precedent and held that Title VII prohibits discrimination based on sexual orientation.

Retaliation. As to the officer’s retaliation claim, while some of her allegations were time-barred, the July disciplinary notice was not. And while the department argued that the period of time between her written complaint in May 2015 and the July 2016 notice was too great to support a causal connection between her protected activity and retaliation, she alleged her complaints about the discriminatory policy went beyond her formal written complaint and she continuously made the department aware of her problems with the policies. Further, she claimed the July notice was issued after events where she expressed her displeasure about the department’s search policies as applied to her and also included punishment for using the f-word and official action against an officer for using rough language was abnormal. This was enough to establish disparate treatment as she received punishment for behavior that would not normally lead to a formal disciplinary notice. Moreover, because disparate treatment can establish a retaliatory causal nexus, this component of the July notice also supported her retaliation claim.

Hostile work environment. The officer’s hostile work environment claim failed, however, as she did not set forth a plausible claim that implementation of the policies contributed to an environment “permeated with discriminatory intimidation, ridicule, and insult.” She claimed that she repeatedly argued with her superiors about these policies and was disciplined as a result. But this, said the court, did not demonstrate hostility toward the officer on the basis of sexual orientation but rather showed a fight between an employee and her supervisors over department policy. As for the “McLovin” incident, the bus driver comments, and the nonverbal actions that she alleged excluded her from her peers, this conduct alone was insufficient to establish a hostile work environment.