While there are efforts before Congress to provide protection under federal law for employment discrimination based on sexual orientation, presently federal law does not explicitly provide protection for adverse employment decisions based on sexual orientation. However, a recent case, Roadcloud v. City of Phila., 2014 U.S. Dist. LEXIS 769 (E.D. Pa. January 6, 2014) (Tucker, J.), demonstrates that exiting federal law can provide certain protection in a sexual orientation context when the factual basis of an employee’s claim supports a finding that an employee fails to conform to gender stereotypes.
In Roadcloud, an openly gay female sergeant employed by the Philadelphia Prison System filed causes of action for discrimination on the basis of her gender, sexually harassment and creating a hostile work environment, alleging that she began to receive harassing comments from her supervisor which focused on plaintiff’s perceived lack of femininity, outward signs plaintiff had engaged in sexual contact, and plaintiff’s sexual orientation. The employee also outlined incidents which included the supervisor claiming that he noticed plaintiff had signs of recent sexual activity in the form of disheveled hair and a “passion mark” which the supervisor shared with plaintiff’s supervisors and co-workers; the supervisor indicated to plaintiff he was dissatisfied with a staffing decision and at the same time told the plaintiff that he was aware of plaintiff’s sexual preferences in a threatening manner. The Plaintiff then made a formal written complaint for which no action was taken; and then received a negative performance review; and eventually, a transfer to a less desirable prison facility.
In considering sexual harassment/hostile work environment claims, the court noted that a plaintiff employee must show (1) the discrimination was intentional and because of the plaintiff’s sex; (2) the discrimination against plaintiff was severe or pervasive; (3) the discrimination had a subjective detrimental effect on the plaintiff; (4) the discrimination was objectively detrimental; and (5) respondeat superior liability (the employer is responsible for the acts of the harassing employee). In so doing, a court must consider the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. While federal law does not consider sexual orientation a protected class, discrimination on the basis of a plaintiff’s failure to conform to expected gender stereotypes is discrimination on the basis of sex, which means that if a plaintiff employee can show that either the harasser was motivated by sexual desire, expressed a general hostility to the presence of one sex in the workplace, or acted to punish noncompliance with gender stereotypes, a claim is viable.
In Roadcloud, the court concluded that the Plaintiff employee sufficiently alleged discrimination against her on the basis of her failure to conform to expected gender stereotypes (i.e. a belief that women should not be aggressive), and the supervisor acted on the basis of gender because Plaintiff alleged the supervisor’s harassment focused on plaintiff’s appearance, specifically the signs of sexual conduct he believed plaintiff exhibited but he did not make similar comments about women that conformed to the supervisor’s expectations of a female. The court also found that the conduct was severe or pervasive because the Complaint demonstrates that for a period in excess of one year, the Plaintiff was harassed by the supervisor, which the court found alleges “complex tapestry” of actions by the employer sufficient to plausibly allege severe or pervasive discrimination.
The court also found that the employee has a separate viable gender discrimination claim because: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances of the adverse employment action could give rise to an inference of intentional discrimination. In so doing, the court found that Plaintiff alleged two adverse employment actions, her negative performance evaluations and a transfer to a different facility with poorer conditions, fewer responsibilities, and less hours.
For more information on sex discrimination, sexual orientation discrimination and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-2130157.html, http://www.job-discrimination.com/lawyer-attorney-2130165.html