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In Sixth Circuit, sexual orientation discrimination claims still a no-go

By Lisa Milam-Perez, J.D.

A “TACT” officer in the Memphis Police Department could not convince a federal district court in Tennessee that Title VII protects employees from discrimination based on sexual orientation. Citing the settled Sixth Circuit precedent on the issue—which “clearly precludes” a discrimination claim based on sexual orientation—the court granted judgment on the pleadings in favor of the police department and the municipality with prejudice. However, the employee was given an opening to shore up his sex stereotyping cause of action. Although the facts weren’t sufficiently fleshed out, the court dismissed the claim without prejudice (Clemons v. City of Memphis, Tennessee, December 28, 2016, McCalla, J.).

Contending that he faced discrimination, harassment, and retaliation based on his sexual orientation (as well as his role as the department’s LGBTQ liaison), the employee asserted a host of claims against the police department and the city under Title VII, the Fourteenth Amendment, and a local ordinance. (He also alleged disability and religious discrimination, claims that were not at issue here.)

Sexual orientation discrimination. The employee alleged that his superiors disapproved of his “‘homosexual lifestyle.’” He also contended that his engagement video was circulated around the workplace while police department employees mocked the fact that he was gay and was engaged to another male officer. According to his complaint, he was subject to disparate treatment compared to heterosexual officers.

The employee gamely argued that Title VII “should be read and interpreted to encompass discrimination due to sexual orientation.” Sexual orientation discrimination, he asserted, “encompasses treating an employee less favorably because of his sex,” in that as a gay male, he didn’t conform to sex norms and stereotypes, and that the defendants (and his coworkers) objected to his “romantic and sexual association with a male partner.” Such objections motivated the harassment and discrimination he endured, according to his complaint.

The state of the law. The Sixth Circuit’s 2011 decision in Gilbert v. Country Music Ass’n, Inc. controlled here. In that case, the appeals court rejected an attempt by the plaintiff to bring a sexual orientation discrimination claim under the guise of a gender-stereotyping claim. “For all we know, “the appeals court had explained, the employee “fits every male ‘stereotype’ save one—sexual orientation—and that does not suffice to obtain relief under Title VII.” This precedent foreclosed any contrary result here—notwithstanding that the EEOC had since issued a decision, in a case involving a federal employee, that “‘allegations on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex’ and therefore should be included within Title VII protection.” (That case, Baldwin v. Foxx, was just resolved on an offer of judgment.)

The court also referenced the Seventh Circuit’s July 2016 decision in Hively v. Ivy Tech. Community College, in which the appeals court ruminated that “disentangling gender discrimination from sexual orientation discrimination may be difficult.” (However, noting that “the writing is on the wall” and suggesting the tide would likely turn, that case has since been reheard en banc, and a decision is said to be imminent.) Still, the Sixth Circuit has yet to comment on Hively, and Gilbert still controls. Bottom line: “Until the Sixth Circuit or the Supreme Court provides further commentary on this issue, this Court is bound by Sixth Circuit precedent.” Thus, the court dismissed the sexual orientation discrimination claim with prejudice.

Sex stereotyping claim. In the alternative, the employee asserted a sex-stereotyping theory, urging that, at any rate, he alleged sufficient facts to support a sex discrimination claim under Title VII based on gender stereotyping and gender non-conforming conduct. The employer countered that he had offered nothing but his homosexuality in support of his sex-stereotyping claim, but the employee responded that he hasn’t yet had the opportunity to fully develop the facts, and his arguments as to how the facts support his allegations, as discovery is still pending.

The court took this assertion to mean the employee was requesting additional discovery, which was improper on a motion to dismiss, so it looked solely at the four corners of his complaint and found it wanting. As it stands, the complaint alleges that he was harassed due to his homosexuality, and that the disparate treatment he endured based on his sexual orientation was a result of sexual stereotypes and a belief that he wasn’t “sufficiently masculine, was too feminine, or due to a belief that men should only date women, not other men.” Absent, though, was an “observable, non-conforming gender characteristic that subjected him to discrimination.” Here, as in Gilbert, the employee’s homosexuality was the only outlier—at least according to the facts pleaded.

Consequently, the court granted the employer’s motion to dismiss the sex-stereotyping claim without prejudice, and allowed the employee leave to file a motion to amend his complaint in order to allege additional facts to support his claim, in conformity with Title VII and circuit precedent.