Tuesday, January 29, 2019

Does Title VII protect employees from discrimination based on perceived sexual orientation?

Guess v. Phila. Housing Auth. is an interesting decision from the Eastern District of Pennsylvania. The Court addressed whether an employee could proceed under Title VII for a claim that he was discriminated against based on his perceived sexual orientation.

The short answer is 'no' (in this jurisdiction). As the Court noted:
The Third Circuit has held that discrimination because of sexual orientation is not discrimination because of sex for Title VII purposes. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 , 261 (3d Cir. 2001). I am not empowered to overrule that decision, although Plaintiff's arguments urging me to do so certainly warrant discussion . . . . 
The judge did include some of that discussion, noting that some of the bases for the Bibby decision have lost their support. Specifically, the Third Circuit has since minimized the impact of subsequent legislative history when interpreting statutes. And, the Third Circuit relied in part on precedent from other circuits, some of which have since overruled those decisions.

Additionally, plaintiffs can easily dress their sexual orientation discrimination claims up as gender stereotyping claims to avoid dismissal. Per the Court, "I am at a loss to conceive of a sexual orientation discrimination claim that could occur in so much of a vacuum as to be free of any gender stereotyping."

This whole issue of whether Title VII applies to sexual orientation appears to be reaching a decision point. We already have a circuit split. We have waffling EEOC input (based on changing administrations). Multiple petitions for certiorari are pending before the Supreme Court. Of course, the whole thing could easily be resolved with legislative action . . . but I'm not holding my breath.

No comments:

Post a Comment