It was a clever legal argument and a good try to get gays and lesbians covered under existing federal civil-rights law.
But in the end, it didn't work. Not because the lawyers didn't give it a good shot. Not because the gay man who brought the suit didn't have justification. Not because it wasn't a worthy cause. Even the judges who ruled against the case conceded that.
But because, plain and simply, Congress has not yet said that discriminating against and harassing people in the workplace due to their sexual orientation is wrong.
"Harassment on the basis of sexual orientation has no place in our society," wrote U.S. Circuit Judge Maryanne Trump Barry in a recent unanimous decision by a panel of three federal judges. "Congress has not yet seen fit, however, to provide protection against such harassment."
Ironically, the judges ruled on the case just one day after the re-introduction of the Employment Nondiscrimination Act, or ENDA, in Congress. The ruling underscored the urgent need for passing the bill.
The judges ruled that gay and lesbian employees cannot sue for protection from workplace harassment and discrimination under federal sex discrimination laws. Right or wrong, the judges said, the law simply doesn't cover gays and lesbians.
The decision brought to a close a case by a gay man who says he was harassed and physically attacked after he came out at work.
In 1998, Philadelphia resident John J. Bibby's sued the Philadelphia Coca-Cola Bottling Co. alleging his rights were violated by coworkers who harassed and physically attacked him after he told them he was gay.
Back in 1993, Bibby experienced troubling health symptoms he thought signaled he had contracted the AIDS virus. He dropped weight, had trouble breathing and vomited blood. Fear he had HIV lead him to talk about his sexual orientation to his employers at the Philadelphia Coca-Cola Bottling Company.
The good news for Bibby was that he was not infected with HIV. The bad news, he has said, is that upon returning to his job, he found himself the target of anti-gay harassment. He claims his coworkers were not just hostile, but they even physically attacked him because of his sexual orientation. The Coca-Cola Bottling Company denied Bibby's allegations.
Bibby's lawyer, Arthur B. Jarrett, had tried to argue that the courts should close what he described as a loophole in the civil-rights law. He encouraged the judges to interpret the 1964 federal civil-rights law commonly referred to as Title VII to include more than just gender and sexual conduct.
His creative argument went something like this: If the judges found that Bibby was not protected under the law because of his sexual orientation, it would put Bibby in the awkward position of being able to sue if he suffered unwanted sexual advances from a woman or another gay man, but not if he was being physically harassed by male coworkers.
Jarrett got it right on one count, anyway: It's an awkward position to be in.
But until Congress passes ENDA or a similar law, that's exactly the position that gays and lesbians all over the country remain in.
The judges did the only thing they could: They ruled according to existing law, and found Bibby did not have grounds for his lawsuit.
Of course, it's important to remember that the court wasn't saying Bibby's claims of harassment weren't valid. They simply said that under current law, he wasn't protected from such harassment.
Indeed, the judges made it clear they thought such protection should be granted in today's society. They simply didn't have the authority to create the law.
That lies, of course, with Congress.
Bibby's is just one more example of why the law is so desperately needed.
His case is hardly an isolated one. Indeed, in introducing ENDA again, co-sponsor Sen. Edward Kennedy told the story of yet another gay man discriminated against on the job solely because of his sexual orientation. Kendall Hamilton, an employee of the Red Lobster restaurant chain, was denied a promotion because, he was told, his sexual orientation "was not compatible with Red Lobster's belief in family values.''
Hamilton eventually left the company for another job.
We know that Hamilton and Bibby are just a drop in the proverbial bucket of discrimination cases against gay and lesbian people on the job.
But until Congress passes ENDA or a similar bill to protect gays and lesbians from workplace discrimination, we are stuck in that awkward place that Bibby's lawyers so eloquently described to the courts: Limbo.
