Title VII Did Not Prohibit Sexual-Orientation Bias


By Jeffrey Rhodes March 27, 2019

​A male employee's lawsuit against his former employer claiming that his supervisor used a homophobic slur and made him, instead of female employees, perform tasks involving manual labor could not proceed as a claim of sexual-orientation discrimination and harassment, a federal district court held.

The plaintiff was hired by the Philadelphia Housing Authority as a family self-sufficiency (FSS) coordinator. Many of his co-workers were women, and the plaintiff thought he was paid less per year than three similarly situated female FSS coordinators. The plaintiff inquired about the reasons for the pay disparity, but his concerns went unaddressed.

According to the plaintiff, his female supervisor regularly assigned him to lift boxes, carry water jugs, pick up book bags or perform more manual, labor-intensive tasks instead of the female employees. One time the plaintiff was told to pick up heavy book bags and objected, and his supervisor called him a homophobic slur.

The plaintiff reported the incident to the director and executive vice president, who asked the plaintiff whether he really wanted to file a complaint and told him to be sure that was what he wanted to do. The next day, the plaintiff wrote a memo regarding the incident and sent it to the director and executive vice president.

The plaintiff then met with HR, which informed him that while his complaint may establish a violation of the housing authority's general regulations of behavior, it did not establish an Equal Employment Opportunity (EEO) violation.

After reporting the incident, the plaintiff received text messages from his supervisor repeating the homophobic slur. His supervisor also expressed shock at his handling of the situation and expressed offense that he reported it even though he is not gay and she had apologized. A female co-worker previously called the plaintiff a girl, and after the incident she approached him and said she did not know whether he was gay or not.

Shortly thereafter, the plaintiff resigned. He subsequently received a letter from HR confirming that his complaint did not describe an EEO violation.

The plaintiff then filed a charge of discrimination and a federal lawsuit alleging sexual-orientation discrimination and harassment in violation of Title VII of the Civil Rights Act of 1964. The housing authority filed a motion to dismiss the complaint for failure to state a valid claim.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

In considering the motion to dismiss, the court noted that the appeals court for that jurisdiction, the 3rd U.S. Circuit Court of Appeals, had previously decided that the relevant federal statute, Title VII, did not prohibit sexual-orientation discrimination. Because of this ruling, the court determined that it could not allow the plaintiff's claim to proceed as it had been written due to its focus on the plaintiff's perceived sexual orientation as the basis of his claim.

The court went on to question the distinction between sexual-orientation discrimination, which does not violate Title VII, and sex stereotyping, which does. The court noted that unlawful sex stereotypes concerning behavior, dress and attitudes often overlap with sexual-orientation discrimination.

Nevertheless, because the courts in that jurisdiction had not extended Title VII's coverage to prohibit sexual-orientation discrimination, the court granted the housing authority's motion to dismiss. The court granted the plaintiff leave to amend and advised him to convert his sexual-orientation claims to sex-stereotyping claims.

Guess v. Philadelphia Housing Authority, E.D. Pa., No. 18-2948 (Jan. 24, 2019).

Professional Pointer: Employers located in jurisdictions that do not recognize sexual-orientation discrimination should not assume they can freely make employment decisions based on sexual orientation or perceived sexual orientation. Even in those jurisdictions, an employee can easily convert a sexual-orientation claim into a sex-stereotyping claim and proceed to litigation.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.


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