One of the more hotly contested areas of employment discrimination currently is discrimination against LGBT employees. In states like Tennessee, federal court precedent has ruled that sexual orientation discrimination is not a valid type of Title VII violation, but some LGBT employees have won their cases by arguing that their employers discriminated against them for failing to conform to traditional sex stereotypes. In one recent federal court case from West Tennessee, a police officer lost because his sex stereotyping claim did not offer proof that his employer discriminated against him due to some “observable characteristic” that was insufficiently masculine.
The employee who sued in this case was a member of the Memphis Police Department’s TACT unit, which is an “elite unit” that responds to terrorist threats, barricade situations, hostage takings, and “high-risk felony apprehensions.” The employee asserted that his employer violated Title VII in its treatment of him in two ways. He alleged that he suffered discrimination based upon his sexual orientation and upon his not conforming to stereotypical gender norms. Specifically, the officer alleged that he was informed that his superiors did not approve of his homosexual “lifestyle,” that others on the force made derogatory and insulting comments about him and his fiancé (another officer on the force) while viewing the plaintiff’s engagement video, and that he incurred negative treatment as a result of the “inconsistent application of departmental policies.”
The employer asked the trial court to throw out the officer’s case, and the employer won. The officer’s case suffered from two types of problems, according to the court. On the one hand, the officer alleged that he was a victim of sexual orientation discrimination, which was a claim that, regardless of the facts, could not proceed. Previous rulings by the Sixth Circuit Court of Appeals have been clear that sexual orientation is not covered by Title VII, and, as a result, a lawsuit arguing that the employer discriminated based upon the employee’s being gay or lesbian cannot go forward.
An avenue that has produced success for some gay and lesbian employees in their discrimination cases is a claim of “sex stereotyping” discrimination. In one recent case from Georgia, a hospital security guard was allowed to proceed with her case. In her case, she argued not only that her employer punished her for being a lesbian but also that she was punished for a hairstyle and clothing that were considered to be stereotypically masculine and insufficiently feminine. If that case had occurred in Tennessee, Sixth Circuit precedent would seem to indicate that the employee’s sexual orientation claim would fail (as this police officer’s did) but that she would be allowed to proceed on her claim, based upon her clothing and haircut.
In this police officer’s case, he did include a claim that his employer discriminated against him based upon sex stereotyping, but the way he pled it didn’t persuade the court. When you, as an employee, assert a sex stereotyping discrimination claim, you must present to the court proof that “an observable, gender non-conforming characteristic subjected” you to discrimination. For example, in the Georgia security guard’s case, it was her short haircut and stereotypical masculine attire.
In this case, the police officer’s argument generally asserted that he suffered from discrimination due to “a belief that [he] was not sufficiently masculine” and “was too feminine.” These are not the tangible, observable characteristics the law requires, according to the court. While the plaintiff did mention his wearing a beard, that couldn’t help his case, since the wearing of facial hair by a man is not a stereotypically non-conforming gender characteristic.
The trial court, while dismissing the officer’s stereotyping claim, did allow him the opportunity to re-file with proof that would “conform to the requirements of Title VII and Sixth Circuit precedent.”
The law of employment discrimination as it relates to LGBT employees is likely to continue to evolve. If you believe that you’ve suffered from discrimination on the job, you need counsel who is up-to-date on this fast-changing area of the law. The diligent Tennessee sexual orientation discrimination attorneys at Parks, Chesin & Walbert have worked for many years representing both employers and employees and have the knowledge and the experience you need to deal with issues of sex stereotyping, sexual orientation discrimination, and gender identity discrimination in the workplace.
To speak with one of our lawyers about your case, call 404-873-8048.
More blog posts:
Seventh Circuit Rejects Employee’s Title VII Case Based on Sexual Orientation; 11th Circuit Considers Similar Issues with Georgia, Florida Employees, Atlanta Employment Attorneys Blog, Aug. 5, 2016
Georgia Transgender and Homosexual Workers and 2016 Employment Discrimination Cases in the 11th Circuit Court of Appeals, Atlanta Employment Attorneys Blog, Jan. 27, 2016