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Questioning but following Third Circuit precedent, court dismisses Title VII sexual orientation claim

By Brandi O. Brown, J.D.

While the court noted that the appeals court’s 18-year-old Bibby decision had questionable continued applicability in its distinctions between gender stereotyping and sexual orientation claims, it dismissed the case without prejudice.

A Title VII lawsuit filed by a casino dealer who alleged she was subjected to a hostile work environment and eventually fired because she is a lesbian was dismissed by a federal district court in Pennsylvania, without prejudice. She based her claim on solely on sexual orientation bias, rather than gender stereotyping, but in Bibby v. Philadelphia Coca Cola Bottling Co., the Third Circuit expressly rejected sexual orientation claims under federal law. Although it was bound by that precedent, the court acknowledged that a lot had changed since that decision and agreed that the line between claims based on gender stereotyping and sexual orientation seems “arbitrary.” It cautioned the employee that if she files a new complaint, she must “plausibly allege impermissible gender stereotyping based on sex, or else it should not be filed” (Doe v. Parx Casino, April 11, 2019, Slomsky, J.).

Hostile environment. Less than one year after she was hired as a Table Games Dealer at a casino in Pennsylvania the African-American homosexual female who claimed to have “a masculine gender expression” was fired. According to the employee, she experienced harassment from the moment she started working. At least two fellow employees mis-gendered her and called her “sir.” Another male co-worker acted in an aggressive manner towards her—he refused to move out of her way and even jumped in her face. She was also ostracized by her coworkers, who ignored her, refused to sit with her, and appeared to not want to associate with her.

She complained to her superiors and HR, to no avail. She raised the issue directly in a pre-shift meeting that included her co-workers but was told to stop interrupting the meeting and sit down, even though other employees had been allowed to interrupt meetings in a similar manner. Nothing improved. Thereafter, a co-worker called her “b**ch* and told her she was “dirty” and had a “bald head.” She had overheard the same co-worker making derogatory comments about another employee’s sexuality.

Termination. When she had an incident involving a male customer, who confronted her and made a fist, she alleged her employer used the incident as the opportunity to get rid of her. She was fired for having a “negative interaction” with the customer. She alleged that the real reason she was fired was because of her sexual orientation and the negative reactions of her co-workers, as well as that customer, to her being “openly lesbian.”

Sexual orientation claim not allowed. Moving to dismiss, the employer argued only that the employee failed to state a claim because sexual orientation is not an actionable claim under Title VII in the Third Circuit. The court agreed, explaining that the Third Circuit decision in Bibby controlled, which expressly held that “Title VII does not prohibit discrimination based on sexual orientation” and that Congress had rejected legislation that would have extended the law to cover it.

Nonetheless, the court acknowledged that “much has changed since” that appeals court decision: The U.S. Supreme Court has recognized that same-sex couples have the right to marry; the Seventh Circuit has concluded that discrimination on the basis of sexual orientation is a form of sex discrimination’ and the Second Circuit has held that “sexual orientation discrimination, is motivated, at least in part, by sex and is thus a subset of sex discrimination.” But the Third Circuit and district courts within it, with one exception, have held fast to Bibby.

An ‘arbitrary’ line? Still, the court discussed the cases preceding Bibby, including Oncale and Price Waterhouse, as well as some of the cases decided later to emphasize the arbitrary distinction that has developed. The line the Third Circuit has “attempted to draw” between sexual orientation and gender stereotyping claims is “difficult to draw,” and even may seem “arbitrary.”

The court compared two cases to illustrate the point. Both involved the same type of underlying facts but one was framed as a sexual orientation claim and was dismissed, and the other was framed as a gender stereotyping claim and was not. “The stark contrast between these outcomes leads a court to contemplate whether the difference between a gender stereotyping claim and a sexual orientation claim is nothing more than artifice.”

Court’s hands are tied. Even though one district court in the Third Circuit had diverged from Bibby, raising questions that this court found “worthy of serious consideration,” it nevertheless explained that “to answer them and change the law would be to circumvent the authority of the Third Circuit Court of Appeals and deviate from the hierarchy of judicial power in the federal system.”

Because the employee did not successfully plead a gender stereotyping claim, only raising it for the first time in opposition to the employer’s motion to dismiss, so the court dismissed her claims. However, it did so without prejudice to her right to amend the complaint to plausibly allege such claims.