In some areas of the country, federal courts have interpreted Title VII of the Civil Rights Act of 1964 to prohibit discrimination on the base of sexual orientation, including homosexuality. However, the Eleventh Circuit Court of Appeals, which interprets federal law for Alabama, has held that sexual orientation is not protected by Title VII. In December of 2017, the United States Supreme Court declined to review the Eleventh Circuit’s position on this issue. Here’s a link to a post that I wrote on that decision: Supreme Court Won’t Review 11th Circuit LGBT Decision.
Although sexual orientation is not protected in the Eleventh Circuit, the court has prohibited discrimination against employees for “failure to conform to gender stereotypes.” Here’s a link to a previous post that discusses the issue: LGBT Issues in the Workplace. In short, employers in the Eleventh Circuit can discriminate based upon sexual orientation, but arguably can’t discriminate because an employee’s manner, attributes, attire, etc. don’t comply with gender stereotypes. As a result, homosexual employees who suffer discrimination are forced to file claims alleging that they suffered discrimination, not because of their sexual orientation, but because of their failure to conform to gender stereotypes.
In Brakeman v. BBVA Compass, No. 2:16-01344-JEO, 2018 WL 3328909 (N.D. Ala. Jul. 6, 2018), Chief United States Magistrate Judge John Ott discussed these issues in the context of a retaliation claim. Krystal Brakeman is gay and married to another woman. She claimed that a co-worker made statements to the effect that Brakeman needed to “talk to Jesus” and “get a man in her life.” Ms. Brakeman complained to a supervisor about those statements. Two months later, she was terminated from employment. Her employer asserted that the termination was based upon separate improper conduct by Ms. Brakeman and a lack of truthfulness during an investigation of that conduct.
Ms. Brakeman sued and asserted several theories, including a claim that she was fired in retaliation for complaining about the homosexual-oriented comments of her co-worker. Because homosexual discrimination is not prohibited in the Eleventh Circuit, complaints about homosexual discrimination are not protected. Therefore, Ms. Brakeman argued that she suffered retaliation for complaining about a failure to comply with gender stereotypes. Judge Ott refused to accept that argument, finding that “a plaintiff cannot ‘bootstrap’ an invalid sexual orientation claim into a viable gender stereotyping claim by asserting that homosexuals failed to comply with gender stereotypes because of their homosexuality, real or perceived. …. To hold otherwise ‘would mean that every case of sexual orientation discrimination would translate into a triable case of gender stereotyping.'”
In short, Judge Ott found that Ms. Brakeman was really complaining to her supervisor about homosexual discrimination. And, because homosexual discrimination is not prohibited in the Eleventh Circuit, Ms. Brakeman’s complaints were not protected by Title VII’s anti-retaliation provisions.
At this point, there do not appear to be any decisions from the Eleventh Circuit itself addressing retaliation and gender stereotyping. Nevertheless, Judge Ott’s analysis appears to be a natural extension of the Eleventh Circuit’s position on sexual orientation discrimination. As a result, at least in the Eleventh Circuit, complaints about sexual orientation discrimination are unlikely to be protected by Title VII’s anti-retaliation provisions.