Sixth Circuit Rejects Title VII Discrimination and Retaliation Claim Where Plaintiff Received Three Promotions in Year before Termination

 Last month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on a Title VII sexual orientation and retaliation claim where the plaintiff had been fired for misconduct a year after being hired and receiving several promotions and raises.  Boshaw v. Midland Brewing Co., No. 21-1365 (6^th Cir. 4/26/22).  The Court found it speculative that his sexual orientation was held against him when he received three promotions within 8 months of being hired when he never hid his sexual orientation on his Instagram account and reposted it on his Facebook account after his first promotion.  It is not illegal to discriminate against or request an employee to change their “spiky” hairstyle or hide visible body piercings.   Further, the passage of three months between his protected activity and his termination was “a firm indicator of a lack of a causal link.”  Finally, he could not plead or prove a hostile work environment based on a few isolated and discrete discriminatory actions.

According to the Court’s opinion, the plaintiff had been initially hired as a server.  His manager told him that he would be considered for promotion if he would “act a little more masculine,” change his spiky hair style and remove his visible body piercings.  While the plaintiff deleted his Facebook status, combed over his hair and removed the piercings, he did not change his Instagram page which pictured his male partner, children or gay hashtags.  Within a couple of months, he received three promotions to the second highest position in the restaurant.   In the meantime, he re-posted his Facebook relationship status.   The plaintiff had a positive relationship with his manager, calling her “the best boss ever” and thanking her for his career.  When he was almost lured away by a competing restaurant, he was given a raise.  When he told the owner about his manager’s prior comments about his needing to act more masculine, the owner promised to “make it right” with him and between him and his manager.

However, the plaintiff’s employment was not without problems.  One of the employees – with blue hair – was receiving customer complaints about blue hair in their food and plaintiff did not handle the complaints well.  He also sometimes overstepped his authority and failed to communicate problems with management.   The final straw came when he refused to attend a mandatory meeting, telling a subordinate that he was going to get out of it because he was not going to pay for childcare for the meeting, which was a waste of time.   He then failed to show up for his shift that same evening.   He had confirmed his schedule the day before and with an employee that same day.   He also failed to return a call from his manager.  He was fired the next day.

While his manager’s comments about his masculinity might have constituted evidence of animus, there was no evidence that the comments resulted in a delay or denial of any promotions or any adverse employment action.  The plaintiff never disguised his sexual orientation on his Instagram account and reposted his gay status on his Facebook page after his first promotion and before his second and third promotions.  The plaintiff’s subjective belief that his manager possessed discriminatory animus was insufficient to survive summary judgment.

In other words, [the plaintiff] was promoted despite his open and obvious noncompliance with the supposed condition on his social media postings. To the extent [he] argues that the fact he was promoted only after he changed his hairstyle from “spiky” to “combed over” is evidence of gender stereotyping, we know of no such stereotype, and [he] fails to identify one.

In all, [he] secured three promotions in eight months, rising from an entry-level server to front-of-house operations manager. All things considered, [his] rapid rise shows that Midland did not delay or deny his promotions because of sex discrimination. No rational trier of fact could find otherwise.

The Court also rejected the plaintiff’s retaliation claim where he alleged that his manager subjected him to “hyper scrutiny” after he informed the owner about her prior comments concerning his sexual orientation.  Each of the instances he identified were grounds for legitimate criticism:  his handling of the blue hair in customer food, exceeding his authority with vendors and employees, bringing the wrong resume to a job interview, etc.   Moreover, more than three months had passed between when he reported her comments and when he was fired, weakening any possible temporal proximity.  The Court described this as “a firm indicator of a lack of a causal link” between his protected activity and the adverse employment action.  Finally, he failed to produce evidence that any employees were similarly situated to his position or misconduct.

In any event, there was no evidence that the employer’s explanation for his termination was pretextual.   The plaintiff admitted that he believed the owner “honestly believed” he missed a mandatory meeting and shift.  His manager did not learn until after the termination that the plaintiff may have believed that his absence had been excused.  “This evidence satisfies the “honest belief rule,” which precludes a finding of pretext when an employer’s nondiscriminatory reason for terminating an employee is later proven false, so long as the employer can show that it honestly believed the reason was true when making the termination decision.”

Finally, the Court agreed that the plaintiff failed to plead or prove a hostile work environment claim with a few discrete and isolated acts of possible discrimination.  This was insufficient when  “a hostile work environment claim requires a plaintiff to demonstrate a “workplace . . . permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Supreme Court: Sex Discrimination Under Title VII Includes Discrimination Against Sexual Orientation and Transgender Because You Cannot Have One without the Other.

This morning, with a 6-3 decision, the Supreme Court issued a long-awaited and lengthy decision (with even lengthier dissents) on the coverage of Title VII’s prohibition on sex discrimination and held “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” Bostock v. Clayton County, No. 17-1618 (6-15-20).  This decision covered three different appellate court appeals, including affirming an earlier decision from the Sixth Circuit (involving the termination of a funeral home employee who announced an intention to transition) previously discussed here.  In short, “if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” That being said, Justice Gorsuch highlighted that it is still legal to discriminate on the basis of sports affiliations (sorry Xichigan fans) unless the sports affiliation is tolerated for one sex and not the other.  The decision also left open issues relating to other terms and conditions of employment and the validity of religious objections under the Religious Freedom Restoration Act (which had been rejected but not appealed in the Sixth Circuit opinion).   


The Court did not elaborate much on the differing facts of the three cases: “An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.” Two of the original plaintiffs had died while the cases were pending.  Two of them won on appeal and one had lost.


The Court rejected arguments that the original legislation did not anticipate that sex would be construed to include sexual orientation, etc.:

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.  When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest.  Only the written word is the law, and all persons are entitled to its benefit.

Even if sex were construed to only mean biological distinctions from male and female, this did not resolve the dispute.

The question isn’t just what “sex” meant, but what Title VII says about it.  Most notably, the statute prohibits employers from taking certain actions “because of ” sex.  And, as this Court has previously explained, “the ordinary meaning of ‘because of ’ is ‘by reason of’ or ‘on account of.’ . . . . In the language of law, this means that Title VII’s “because of ” test incorporates the “‘simple’” and “traditional” standard of but-for causation. . . .

 . . .When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.  So long as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law.

No doubt, Congress could have taken a more parsimonious approach. As it has in other statutes, it could have added “solely” to indicate that actions taken “because of ” the confluence of multiple factors do not violate the law.  Cf. 11 U. S. C. §525; 16 U. S. C. §511.  Or it could have written “primarily because of ” to indicate that the prohibited factor had to be the main cause of the defendant’s challenged employment decision. Cf. 22 U. S. C. §2688.  But none of this is the law we have. If anything, Congress has moved in the opposite direction, supplementing Title VII in 1991 to allow a plaintiff to prevail merely by showing that a protected trait like sex was a “motivating factor” in a defendant’s challenged employment practice.  Civil Rights Act of 1991, §107, 105 Stat. 1075, codified at 42 U. S. C. §2000e–2(m). Under this more forgiving standard, liability can sometimes follow even if sex wasn’t a but-for cause of the employer’s challenged decision.

The Court refused to consider how groups of people are treated in general.  Some have argued that because discrimination on the basis of sexual orientation, etc. affects both men and women equally that it cannot be illegal under Title VII.   However, Title VII prevents discrimination against individuals, so the  Court would only consider how one person was treated based on sex, not the population as a whole:

The statute answers that question directly. It tells us three times—including immediately after the words “discriminate against”—that our focus should be on individuals, not groups: Employers may not “fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” §2000e–2(a)(1) (emphasis added). . . . .

The consequences of the law’s focus on individuals rather than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances.  It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex.  This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally.  But in both cases the employer fires an individual in part because of sex.  Instead of avoiding Title VII exposure, this employer doubles it.

An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group.  If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”:  An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.”  (bolding added for emphasis).

The statute’s message for our cases is equally simple and momentous:  An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.  Consider, for example, an employer with two employees, both of whom are attracted to men.  The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.  Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

The Court also rejected a defense based on other factors that contributed to the discharge decisions if the employees still would not have been fired but for consideration of their sex.

Nor does it matter that, when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision.   . . . When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies).  But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.

 . . . .intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees.  There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.  Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman.  To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation.  But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.

The Court also rejected the equal opportunity offender approach:

An employer musters no better a defense by responding that it is equally happy to fire male and female employees who are homosexual or transgender. Title VII liability is not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women. Instead, the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII. So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same.

 . . . For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.

The Court then reviewed some of its prior cases where it has construed “sex” broadly to include pregnancy, motherhood, and same-sex harassment. It provided some lessons from these cases:

First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. . . . .

Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action. . . . .

Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.

The Court also rejected the dissent’s argument that Congress could have included sexual orientation, etc. if it had wanted to do so.

We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception.  Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep.

The Court refused to address the ramifications of its decision in other contexts, such as gender-specific restrooms and religious objections:

The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today.  But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.  Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” As used in Title VII, the term “‘discriminate against’” refers to “distinctions or differences in treatment that injure protected individuals.”  Burlington N. & S. F. R., 548 U. S., at 59. Firing employees because of a statutorily protected trait surely counts. Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.

Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions.  We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a).  This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1.  Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.  See §2000bb–3.

But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.  Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now before us. So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court Finds Violation of Free Exercise Clause Based on Direct Evidence and Disparate Treatment, but Does Not Define the Limits

As widely covered in the media, the Supreme Court decided with a healthy 7-2 majority that a baker’s sincerely held religious views were improperly censored by a local civil rights commission in violation of the First Amendment’s Free Exercise Clause when the commission concluded that the baker had unlawfully discriminated on the basis of sexual orientation in refusing to create and sell wedding cakes to same-sex couples on the grounds that he did not want to endorse behavior that violated his conscience and that gay marriage was then illegal in Colorado.  Masterpiece Cakeshop Ltd v. Colorado Civil Rights Commission, No. 16-111 (6-3-18).  The Court did not address whether the baker was entitled to live his life and conduct his sole proprietor business according to his conscience, but found that he had been discriminated against by the government agency which was so blinded by its pursuit of justice for the same-sex couple that it forgot that the baker has civil rights, too.    The Court was sympathetic that his refusal took place before same sex marriage was even legal in Colorado and before the Court itself upheld the right of same sex couples to marry.  It was also influenced by evidence that he was willing to sell other baked goods, just not wedding cakes.   The more problematic issue was that the government absolved other bakers of religious discrimination when they refused to create and bake cakes with homophobic or anti-gay marriage themes (with religious quotes presumably about marriage) and that one of the government officials disparaged and equated the baker’s sincere convictions and conscience with slavery and the holocaust.  Above all things, a government must remain neutral in matters of religion, view point and conscience, and that was entirely missing in this case as government officials wanted to publicize their distaste for the baker’s convictions: “[T]he delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.”

According to the Court’s opinion several of the commissioners were openly hostile to religion and religious dissenters (notwithstanding that several of the initial 13 colonies were initially settled by and because of religious dissent):

At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state.” Tr. 23. A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.”

                Another of the commissioners went even further:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

The Court observed that the tension between the first amendment and civil rights statutes has been and will remain a difficult issue to resolve, not just for bakers, but for other artists and sole proprietors. It recognized that exceptions will have to be made, but also made clear that those exceptions cannot be too broad without violating the rights of gay citizens:

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion.  This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.

There were a number of concurring opinions. The justices did not agree about the relevance of the other bakers who refused to create and sell cakes which they found personally offensive according to their own conscience.  Some saw their different treatment by the civil rights commission as discriminatory, while others did not.  Justice Kagan submitted that making a special cake that disparages gay marriage is so unique that it cannot be compared to a “regular” wedding cake that the baker refused to sell.  She distinguished it from Justice Gorsuch’s view that the “regular” wedding cake was a special cake to celebrate a same-sex marriage.  She joined the majority opinion not because she felt that the other bakers should not have been treated differently, but because of the reasoning of the state agency reflected improper hostility towards religion.  Justice Kennedy’s majority opinion described it as follows:

Another indication of hostility is the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.

The Commission had found the cake texts to be derogatory and hateful, giving those bakers the right to legally refuse to create and bake those cakes.

The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection.  The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker.  Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.  Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers.  But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brownies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished.  In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections.

                 . . . .

 . . .A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness.  Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.

                 . . . .

                The Constitution “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures  . . . . “

                 . . . It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience based objection is legitimate or illegitimate.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

President Obama Expands Affirmative Action Obligations to Include Sexual Orientation and Gender Identity

This morning, President Obama amended two executive Orders to include sexual orientation and gender identity protection for federal government employees and employees of federal contractors and subcontractors subject to affirmative action obligations.  Of note for private sector employees, sexual orientation and gender identity are given the same protection under Executive Order 11246 as sex, race and national origin.  The Department of Labor has been instructed to promulgate regulations within 90 days that will take effect in 2015 for affirmative action employers.    It remains to be seen if affirmative action employers will be required to track the applications and employment status, to establish goals and to conduct adverse impact analysis of these newly covered employees the same  extent as they are currently required to do for sex, race, disability and veteran status.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth and Third Circuits Address Employment Discrimination Against Gay and Lesbian Employees.

At the end of August, the federal Sixth and Third Circuit Courts of Appeal both addressed the same issue: whether gay and lesbian employees could pursue religion discrimination claims under Title VII against employers who discriminated against them on account of their sexual orientation. In both cases, the Courts refused to permit the employees to pursue religion discrimination claims under Title VII on the grounds that they were not being discriminated against because of their religious or other voluntary beliefs, but rather, because of who they were. However, in both cases, the Court found possible alternative theories of relief for the plaintiffs. In the Sixth Circuit, the Court found the plaintiffs could maintain a constitutional First Amendment claim against the non-profit employer on account of legislative appropriations to that specific agency. Pedreira v. Kentucky Baptists Homes for Children, Inc., No. 08-5583 (6th Cir. 8/31/09). In the Third Circuit, the court found the plaintiff could pursue a sex-stereotyping claim on the grounds that he was being discriminated against for not being a stereotypical macho, blue-collar man. Prowel v. Wise Business Forms, Inc., No. 07-3997 (3rd Cir. 8/28/09).

Title VII Claims

The Pedreira plaintiff was terminated from her position with the non-profit children’s home “because her admitted homosexual lifestyle is contrary to Kentucky Baptist Homes for Children core values.” After her termination, the employer announced a policy of refusing to employ any homosexuals. She brought a claim under the Kentucky Civil Rights Act, which was analyzed as a Title VII claim. The Court, however, found that she failed to state a claim for relief: “Pedreira does not allege that her sexual orientation is premised on her religious beliefs or lack thereof, nor does she state whether she accepts or rejects Baptist beliefs. While there may be factual situations in which an employer equates an employee’s sexuality with her religious beliefs or lack thereof, in this case, Pedreira has “failed to state a claim upon which relief could be granted.” See also Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (Title VII does not encompass discrimination on account of sexual orientation). In short, the plaintiff did not allege that her sexual orientation was a voluntary decision akin to religious beliefs and practices. Another plaintiff brought a failure to hire claim on the grounds that she did not apply for a social worker opening because of the employer’s homophobic policy. The court surprisingly dismissed that claim on the grounds it was speculative (in that she never applied for a job) instead of on the grounds that such discrimination is not actionable under either Title VII or the KCRA. Thus, the possibility remains that the Sixth Circuit could recognize a case of sexual orientation discrimination under Title VII under a different factual situation.

The Prowell plaintiff was involuntarily laid off after he complained about workplace harassment on account of his sexual orientation. He filed suit, claiming that he was unlawfully discriminated against in violation of Title VII on account of his sex and religion. Like the Pedreira case, the Third Circuit dismissed the religion discrimination claim because his testimony showed that he was discriminated against on account of his sexual orientation, not his beliefs or the religious beliefs of others. Like the Sixth Circuit, the Third Circuit had previously determined that Title VII did not encompass discrimination on account of sexual orientation. Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir.2001).


However, the Third Circuit found that the Prowell plaintiff could pursue a sex stereotyping claim to the same extent that a woman could. The plaintiff described himself as an “effeminate man” and claimed he did not fit in with his other male co-workers because he did not conform to gender stereotypes. Because the facts of the harassment showed that the plaintiff had been harassed about his non-macho mannerisms and lifestyle even before his sexual orientation became public knowledge, he could show that his discrimination was related to the fact that he did not conform to societal stereotypes about how a “real” man is supposed to act. Title VII has for some years now prohibited discrimination against women who did not fit societal stereotypes of “ladies.”

First Amendment Claims

In Pedreira, the plaintiffs also brought a taxpayer suit challenging state support of a non-profit with a religious mission on the grounds that it violated the Establishment Clause of the First Amendment. “In their amended complaint, they refer to the Kentucky statutes authorizing the funding of services such as KBHC. However, nowhere in the record before the district court did the plaintiffs explain what the nexus is between their suit and a federal legislative action. The district court found that the plaintiffs’ allegations were more akin to those in Hein, which raised a general Establishment Clause challenge to federal agencies’ use of federal money to promote the President’s faith-based initiatives.” In the end, the Court determined that the plaintiffs lacked standing as federal taxpayers, but not as state taxpayers.

“As with federal taxpayer standing, the plaintiffs must demonstrate “a good-faith pocketbook” injury to demonstrate state taxpayer standing . . . . The plaintiffs point to the alleged $100 million received by KBHC from Kentucky as the requisite “pocketbook” injury . . . . the Kentucky legislature also appropriated sums of money specifically to KBHC. 2005 Ky. Laws Ch. 173 (HB 267) (H)(10)(5), available at http://www.lrc.ky.gov/record/05RS/HB267.htm. Unlike in the federal taxpayer analysis,the plaintiffs have alleged a “concrete and particularized” injury.”

In addition, “the plaintiffs have sufficiently demonstrated a link between the challenged legislative actions and the alleged constitutional violations, namely that Kentucky’s statutory funding for neglected children in private childcare facilities knowingly and impermissibly funds a religious organization. As discussed above, the plaintiffs have pointed to Kentucky statutory authority, legislative citations acknowledging KBHC’s participation, and specific legislative appropriations to KBHC. Through these specifications, the plaintiffs have demonstrated a nexus between Kentucky and its allegedly impermissible funding of a pervasively sectarian institution.”

Insomniacs can read the full court decisions at http://www.ca6.uscourts.gov/opinions.pdf/09a0316p-06.pdf and http://www.ca3.uscourts.gov/opinarch/073997p.pdf.

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