The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/245872
In jurisdictions with fairness ordinances, employers should be cognizant of the local laws and ensure that their handbooks, policies, communications to employees and personnel practices are in compliance. APPLICATION OF EXISTING NON-DISCRIMINATION LAWS TO LGBT EMPLOYEES The case law illustrates a gradual expansion of the protections of Title VII of the Civil Rights Act of 1964 to adverse employment actions based on an employee's non-conformity to gender stereotypes or hostility to transgender or transsexual individuals. In particular, same-sex harassment claims have blurred the distinction between harassment based on sex and harassment based on sexual orientation (real or perceived). A review of recent decisions exhibits the trend to extend Title VII's prohibition on sex discrimination to discrimination based on sexuality and gender roles. In 1998, the U.S. Supreme Court held, in Oncale v. Sundowner Offshore Servs., Inc.,9 that same-sex sexual harassment in the workplace is actionable as sex discrimination under Title VII. The Court provided guidance for determining that same-sex harassment is "based on sex," suggesting that the plaintiff should (1) introduce credible evidence that the harassing conduct is "motivated by sexual desire," (2) prove that "the harasser is motivated by general hostility to the presence of [people of the plaintiff's sex] in the workplace," or (3) introduce "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace."10 Noting that its application of Title VII to same-sex harassment went "beyond the principal evil" with which Congress was concerned in passing Title VII to "cover reasonably comparable evils,"11 the Court advised lower courts to give "careful consideration of the social context in which particular behavior occurs and is experienced by its target."12 The U.S. Courts of Appeal have applied the holding of Oncale in slightly different ways. While the Sixth Circuit had recognized, prior to Wasek, that other evidentiary theories could support a finding that same-sex harassment constituted discrimination based on sex, in addition to the methods of proof articulated in Oncale, that may no longer be the case.13 The Sixth Circuit has most recently held that a plaintiff can prove that same-sex harassment is based on sex only through the three methods described in the Oncale decision.14 In Wasek v. Arrow Energy Servs., Inc., the Sixth Circuit held that the plaintiff's Title VII hostile work environment claim was properly dismissed on summary judgment because the plaintiff did not introduce credible evidence of the alleged harasser's sexuality and the other methods of proof were unavailable as only men were present in the workplace.15 This restrictive application of Oncale came even in the face of egregious facts about how the plaintiff was abused and harassed by a co-worker.16 Some courts and commentators have viewed the Wasek decision as a departure from prior Sixth Circuit jurisprudence.17 A recent decision by the Fifth Circuit provides a contrasting approach. In EEOC v. Boh Bros. Constr. Co., the Fifth Circuit went beyond the methods of proof described in the Oncale decision and held that in same-sex harassment cases, "a plaintiff can satisfy Title VII's because-of-sex requirement with evidence of a plaintiff's perceived failure to conform to traditional gender stereotypes."18 In the Boh Bros. case, the EEOC relied on evidence that the alleged harasser viewed the complainant as effeminate and harassed him for that reason. The court found that a sexual harassment claim could be based on evidence of sex-stereotyping, citing Price Waterhouse v. Hopkins19 as precedent.20 Thus, if the plaintiff can show that the harassment was based on a negative perception of gender non-conforming behaviors or attributes, rather than sexual orientation, the plaintiff may be permitted to proceed with a claim of discrimination based on sex under Title VII. The theory that claims based on non-conformity to gender stereotypes state a claim for discrimination based on sex under Title VII has gained some traction in cases brought by transgender and transsexual individuals. In Smith v. City of Salem, the Sixth Circuit held that "discrimination against a plaintiff who is a transsexual – and therefore fails to act and/or identify with his or her gender –" is the same as sex stereotyping based on gender non-conforming behavior, which was found to constitute discrimination in Price Waterhouse.21 The EEOC, relying on a line of cases including Smith, has held in a federal-sector administrative proceeding that "intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination 'based on. . . sex,' and such discrimination therefore violates Title VII."22 Thus, consideration of gender in an employment action, including consideration of whether the employee or applicant meets a gender stereotype, violates Title VII. While it is clear that a claim of discrimination based solely on sexual orientation is not cognizable under Title VII, state actors may be held liable for sexual orientation discrimination under 42 U.S.C. § 1983. Section 1983 provides a private right of action against a state actor for a violation of one's constitutional rights. In some instances, the courts have permitted sexual orientation discrimination to be pursued under the Equal Protection Clause, though the available remedies are limited.23 In Stroder v. Commonwealth of Ky. Cabinet for Health & Family Servs.,24 the U.S. District Court for the Western District of Kentucky issued a bench decision finding the state agency liable for terminating Mr. Stroder because of his sexual orientation. The plaintiff demonstrated that his violations of the cabinet's internet usage policy were treated differently from "strikingly similar" actions by a heterosexual employee.25 The plaintiff was awarded reinstatement but could not recover back pay and benefits because the state was shielded by Eleventh Amendment immunity.26 Because sexual orientation discrimination is not prohibited by any existing state or federal law in Kentucky, victims of such discrimination have proffered novel theories for seeking redress. For example, in Pedreira v. Ky. Baptist Homes for Children, Inc.,27 a plaintiff whose termination notice stated that "she was fired 'because her admitted homosexual lifestyle is contrary to Kentucky Baptist Homes for Children core values,'" sought to challenge the termination as religious discrimination in violation of the Kentucky Civil Rights Act.28 The Sixth Circuit noted that discrimination based on religion includes adverse action "because the employee fails to comply with the employer's religion."29 The plaintiff argued that "she was terminated because she does not hold KBHC's religious belief that homosexuality is sinful."30 The court rejected this theory, finding that the defendant clearly acted based on the plaintiff's sexuality, not her religious beliefs or non-adherence.31 The court, however, left the door open for future claims by stating that "there may be factual situations in which an employer equates an employee's sexuality with her religious beliefs or lack thereof."32 B&B; • 1.14 17 court. The commission is empowered to hold an administrative hearing on the allegations, after it has found probable cause to believe that discrimination has occurred, and to order the same remedies available under the Kentucky Civil Rights Act.8