Complaints About Homosexual Discrimination Not Protected by Title VII

Title VII homosexual discrimination retaliation Alabama Employment Law
Employees who complain about homosexual discrimination are not protected by Title VII’s anti-retaliation provisions.

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.

Supreme Court Won’t Review 11th Circuit LGBT Decision

Supreme Court LGBT Alabama Employment Law
The United States Supreme Court Declined to Hear an LGBT Discrimination Case

This morning, the United States Supreme Court announced that it would not review a decision from the Eleventh Circuit Court of Appeals, which held that sexual orientation is not protected by Title VII of the Civil Rights Act of 1964.

Jameka Evans is lesbian.  After she was terminated from her position as a security guard, she filed a pro se (without a lawyer) lawsuit claiming that she was terminated because of her sexual orientation.  Her case drew the attention of the Lambda Legal Defense and Education Fund and the United States Equal Employment Opportunity Commission, which helped her to argue the case as amicus curiae (friends of the court).  A panel of the Eleventh Circuit ruled that Title VII of the Civil Rights Act does not protect against sexual orientation discrimination.  But, consistent with numerous prior decisions, the Court also held that Ms. Evans could sue for discrimination based upon “gender nonconformity.”

Lambda Legal asked the Supreme Court to review the Eleventh Circuit’s decision, but the Court declined to do so this morning.  Here’s an article from The Hill discussing the decision:  Supreme Court Refuses to Hear LGBT Workplace Discrimination Case.

The Evans decision is consistent with a long line of precedent in the Eleventh Circuit.  In fact, I previously discussed this issue here:  LGBT Issues In the Workplace.  Nevertheless, there may be a trend developing in other courts to protect sexual orientation under Title VII.  In April, the Seventh Circuit Court of Appeals ruled that Title VII applies to such claims.  Those types of conflicts between Circuit Courts of Appeals often lead to decisions by the Supreme Court.  Thus, it is possible that the Supreme Court will be asked to review this issue again in the future.

Gay Police Officer’s Discrimination Case Goes Forward

Homosexual discrimination under Title VII
Gay Police Officer’s Discrimination Claim Goes Forward

An Alabama United States Magistrate Judge recently declined to dismiss a discrimination claim filed by a homosexual police officer.  Smith v. City of Pleasant Grove, No. 2:16-cv-00373-JEO, 2016 WL 5868510 (N.D. Ala. Oct. 7, 2016).

According to the complaint, Lance Smith was hired by the Pleasant Grove Police Department in 2014.  After he was offered the position, he informed his supervisor that he is homosexual.  The supervisor suggested that he should reconsider working at the department, but later sent an email saying that his homosexuality would not be an issue.  After starting work, he was paid a salary $5,000 less than promised by the supervisor.  Mr. Smith was supposed to attend a three-week filed training course, where he was assigned to ride with a Field Training Officer.  But, he was assigned to work on his own after less than two weeks.  Two months after starting work, Mr. Smith was told that he was “not going to work out,” and told that he would be grounded, suspended and fired if he did not resign.

Mr. Smith resigned from employment and filed suit under Title VII of the Civil Rights Act of 1964.  He alleged that he was constructively discharged because of his sexual orientation and because of sexual stereotypes associated with his gender.

The City of Pleasant Grove moved to dismiss the complaint and argued that discrimination based upon sexual orientation is not actionable under Title VII.  Magistrate Judge John Ott declined to dismiss the complaint.  Judge Ott recognized that the Eleventh Circuit Court of Appeals has consistently rejected Title VII claims based upon sexual orientation.  Nevertheless, he also recognized that trend might be changing.  The United States Equal Employment Opportunity Commission and at at least one federal court in Alabama have recently recognized that sexual orientation claims are actionable under Title VII.  See Isaacs v. Felder Servs., LLC, 143 F.Supp. 3d 1190, 1193 (M.D. Ala. 2015).

Judge Ott was able to side-step the issue of conclusively deciding whether sexual orientation claims are actionable under Title VII.  Instead, he relied upon an established line of Eleventh Circuit cases holding that Title VII protects employees who allege discrimination based upon failure to conform to sex and gender stereotypes.  See Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011).  Judge Ott found that Mr. Smith’s complaint contained sufficient allegations to allow him to proceed with discovery to support his gender stereotyping claim.

Judge Ott’s ruling appears to be a proper application of the existing federal law in Alabama regarding gender stereotyping.  I previously wrote about the issue of gender stereotyping here:  Emerging LGBT Issues  Unquestionably, the City of Pleasant Grove will move for summary judgment at the conclusion of discovery.  It will be interesting to see if Judge Ott directly tackles the  issue of sexual orientation discrimination at that stage.