Windy City Media Group Frontpage News

THE VOICE OF CHICAGO'S GAY, LESBIAN, BI, TRANS AND QUEER COMMUNITY SINCE 1985

home search facebook twitter join
Gay News Sponsor Windy City Times 2021-12-08
DOWNLOAD ISSUE
Donate

Sponsor


  WINDY CITY TIMES

Title VII, Where and why "sex" matters to LGBT employees
by Lisa Keen, Keen News Service
2018-03-21

This article shared 859 times since Wed Mar 21, 2018
facebook twitter pin it google +1 reddit email


Lori Franchina worked as a rescue worker for Providence, Rhode Island, and for four years, everything was fine. Then one day, she was paired up with a male worker notorious for sexually harassing female colleagues. The male worker immediately began harassing Franchina, constantly offering to have sex with her, and openly taunting her as a lesbian in front of other fire personnel, hospital workers, and members of the public.

Franchina told a superior officer about the incidents, and the superior officer compelled her to report them, triggering a disciplinary hearing against the male co-worker. But soon after that, other male firefighters began harassing Franchina. One put something in her food on several occasions that made her severely ill; others deliberately sabotaged her rescue equipment and disobeyed orders she gave them in ways that put lives of the public in jeopardy. One firefighter, who was wearing latex gloves soiled by blood and brain matter from a suicide victim, put his hands in front of Franchina's face and snapped them off in a way that caused the victim's body fluids to fly into her eyes and mouth.

After that incident, Franchina was diagnosed with severe post-traumatic stress, but she fought back, filing a complaint and, eventually, a lawsuit, charging the fire department had violated Title VII's prohibitions against sex discrimination and against retaliation for complaining of sex discrimination.

One judge described Franchina's story as a particularly "horrific" one, but there are many more like hers. Some are known because the victims of discrimination filed lawsuits. All of them, including Franchina, tried to seek protection under Title VII by arguing that the discrimination they suffered because of their sexual orientation is prohibited discrimination based on "sex."

Most of the lawsuits have been from lesbians, but some have been from gay men. There was the lesbian school probationary officer in Texas whose male supervisor told her she "looked gay" and was "not as feminine as other women" employees ( Carr v. Humble ). There was the gay man in North Carolina whose employer fired him after he brought his same-sex partner to a company lunch ( Snyder v. Ohio Electronics ). There was the lesbian employee of an assisted living facility whose male supervisor repeatedly made lewd and sexually offensive remarks to her about her being gay ( Stevens v. University Village ). There was the lesbian teacher, Jira Churchill, in a Maryland public high school who found the slur "FAG" written on her chalkboard, had students refer to her as Mister Churchill, and was removed from her teaching job because she was deemed "aggressive' ( Churchill v. Prince George's ). And there is the lesbian shift manager at a McDonald's fast food restaurant in Alabama whose supervisor repeatedly told her, even in front of customers, that she walked like a man and needed to look more feminine ( Whitt v. Berckman's ).

Franchina and these others all tried to get relief by filing lawsuits in federal court, arguing that Title VII of the U.S. Civil Rights Act of 1964 prohibits the kind of adverse treatment they suffered because they are gay or perceived to be gay.

Title VII is a section of the Civil Rights Act that prohibits employers from taking adverse action against an employee or potential employee "because of such individual's race, color, religion, sex, or national origin." Since the 1970s, lawsuits for LGBT people have tried to convince the courts that the language "because of…sex" should be read to include "because of …sexual orientation."

Heterosexuals, too, have filed lawsuits using this argument.

In 1996, in Charlotte, North Carolina, a 16-year-old heterosexual male newly employed by Pizza Hut, filed a Title VII claim that his gay male co-workers sexually harassed him and made repeated sexual advances and vulgar remarks intended to humiliate him. In Alabama, a heterosexual female teacher said she suffered retaliation at Talladega College after she complained about a "Teaching Tolerance" program that she said actively promoted the "gay agenda." And in Georgia, a newly hired motel clerk lost his job because his supervisor perceived him to be gay.

None of these lawsuits succeeded on the grounds that "sexual orientation" discrimination is a type of "sex" discrimination. Most were dismissed and haven't been appealed.

In Franchina's case, a jury agreed she had suffered discrimination under Title VII, but the city appealed. Providence argued that, for Franchina's sex discrimination complaint to stick under Title VII, the court would have to determine whether a gay male firefighter would have been treated differently than a gay female firefighter. Otherwise, the city argued, the discrimination Franchina faced was not because of "sex" but because of "sexual orientation." And sexual orientation, argued the city, is not covered under Title VII.

Long fight, slow change

"Initially, the courts, which reflected the widespread homophobia in society at the time, rejected [Title VII sexual orientation lawsuits] out of hand without really giving them serious thought or consideration," said Christopher Stoll, senior staff attorney for the National Center for Lesbian Rights. "So for a long time, we were stuck with bad precedents in most places and had no real chance of persuading the courts to reconsider them.

Some courts, recalled Jenny Pizer, law and policy director for Lambda Legal, "said Congress couldn't possibly have meant to protect homosexuals and transsexuals when they passed the CRA in 1964…."

Both Pizer and Stoll said things really began to change in 1989, when the U.S. Supreme Court issued a decision in Price Waterhouse v. Hopkins. The case did not involve a lesbian but a female employee at the accounting giant Price Waterhouse. The employee, Ann Hopkins, was rejected for partnership because some the top officials at the firm considered her too masculine and advised her she needed to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." The Supreme Court majority said Price Waterhouse's refusal to promote Hopkins was based on her sex and "motivated by stereotypical notions about women's proper deportment."

"Plaintiffs then began to make the same arguments about sexual orientation," said Stoll. "After all, the idea that men should only be attracted to women and vice versa is about as clear a gender stereotype as there is."

Then, in 1998, the Supreme Court made another important ruling: saying Title VII's prohibition against sex discrimination, including through sexual harassment, could be used to protect an employee from sexual harassment by an employee of the same sex ( Oncale v. Sundowner ).

"The Oncale decision in 1998 also seemed like an important analytical tool in a changing landscape that ought to help us," said Pizer.

But it wasn't until April 2017 that any federal appeals court agreed that Price Waterhouse and Oncale logically meant that Title VII's language on sex discrimination should include sexual orientation discrimination.

"Price Waterhouse held that the practice of gender stereotyping falls within Title VII's prohibition against sex discrimination, and Oncale clarified that it makes no difference if the sex of the harasser is ( or is not ) the same as the sex of the victim," said the 8 to 3 majority decision in Hively v. Ivy Tech from the Seventh Circuit U.S. Court of Appeals. Because the lower court had dismissed the case, the appeals decision sent it back for deliberation on the merits of the lesbian employee, Kimberly Hively's discrimination complaint.

That Hively decision came just one month after a three-judge panel of the Eleventh Circuit ruled, in a similar case ( Evans v. Georgia Regional ) ruled that Price Waterhouse and Oncale were not "clearly on point" and that it had to abide by an earlier decision in that circuit that said, "Discharge for homosexuality is not prohibited by Title VII."

Thus, there came into being a conflict between two federal appeals courts. LGBT legal activists were hopeful that this difference of opinion might compel the Supreme Court to settle the matter.

"There's just too much confusion in the lower courts," said Gary Buseck, legal director for GLBTQ Legal Advocates & Defenders.

But Ivy Tech Community College did not appeal to the Supreme Court, and the case is still before a district court on the merits of Hively's claims. When Lambda Legal appealed the Eleventh Circuit decision in Evans to the U.S. Supreme Court, the high court simply declined to look at it. That postpones any national resolution of the Title VII-sexual orientation issue until a later date.

But change is coming

That later date is almost certainly coming, as more and more Title VII-sexual orientation cases are pressed and reach other federal appeals courts.

In February of this year, in a 10 to 3 majority decision in Zarda v. Altitude Express, the full appeals bench of the Second Circuit ruled that "sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination."

"Because one cannot fully define a person's sexual orientation without identifying his or her sex, sexual orientation is a function of sex," wrote the court. "…Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected."

With those rulings from the Second and Seventh circuits, LGBT people in the states covered by those rulings, can seek relief from Title VII. The states are New York, Connecticut, and Vermont ( in the Second ); Illinois, Indiana, and Wisconsin ( in the Seventh ).

Claims in other circuits are advancing.

Just this month, Lambda Legal took another Title VII-sexual orientation case ( Horton v. Midwest Geriatric ) to the Eighth Circuit ( covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota ).

And though Providence rescue worker Lori Franchina's Title VII-sexual orientation claim did not succeed in the First Circuit courts, she still won her trial and the appeal on her sex discrimination and retaliation claims. In a footnote that caught many LGBT legal activists' attention, the panel suggested the "tide may be turning when it comes to Title VII's" protection against sexual orientation discrimination.

© 2018 Keen News Service. All rights reserved.


This article shared 859 times since Wed Mar 21, 2018
facebook twitter pin it google +1 reddit email

  ARTICLES YOU MIGHT LIKE

Gay News

Human Rights Campaign Foundation releases new data on the LGBTQ+ wage gap
2022-01-19
-- From a press release - WASHINGTON — Today, the Human Rights Campaign Foundation, the educational arm of the Human Rights Campaign, the nation's largest lesbian, gay, bisexual, transgender and queer (LGBTQ+) civil rights organization, released ...


Gay News

Human Rights Campaign celebrates advances in LGBTQ+ policies one year into Biden-Harris administration
2022-01-19
-- From a press release - WASHINGTON, DC — One day before the one year anniversary of the inauguration of President Joe Biden and Vice President Kamala Harris, the Human Rights Campaign (HRC) celebrates the advances that have been made in LGBTQ+ ...


Gay News

Chief Judge Evans responds to Mayor Lightfoot's request on electronic monitoring
2022-01-18
-- Press release from Office of the Chief Judge Cook County Circuit Court - Chief Judge Timothy C. Evans responded Jan. 19 to Chicago Mayor Lori Lightfoot's request for a moratorium on use of electronic monitoring for defendants accused of certain violent crimes by pointing out the national and state ...


Gay News

Texas' anti-trans youth sports law goes into effect
2022-01-18
A new Texas law bars transgender student athletes from competing on school sports teams that align with their gender identity, Houston Public Media reported. House Bill 25 is one of several laws that went into effect ...


Gay News

Rabbi taken hostage in Texas LGBTQ-friendly synagogue expresses thanks
2022-01-17
Rabbi Charlie Cytron-Walker, who was among the four hostages freed Jan. 15 from a Dallas-area synagogue, said there was "no question" the experience was traumatic, and thanked the community and world for the prayers and love, ...


Gay News

NATIONAL Lambda Legal, Penn. city's change, couple on the run, Bayard Rustin
2022-01-16
Lambda Legal filed a complaint with the federal Equal Employment Opportunity Commission (EEOC) against the Dallas Arboretum and Botanical Society, Inc. on behalf of a former employee who was fired after they and other Dallas Arboretum ...


Gay News

National LGBTQ Task Force Action Fund ED urges action on voting rights
2022-01-14
-- From a press release - "The National LGBTQ Task Force Action Fund urges the U.S. Senate to pass the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. Voting rights are a cornerstone of our democratic process and ...


Gay News

Plaintiff in historic Florida marriage-equality lawsuit found dead
2022-01-14
In Florida, Jorge Diaz-Johnston was recently found dead in a Jackson County landfill, ABC News reported. Diaz-Johnston, 54, was reported missing on Jan. 3 near his workplace and police are investigating his death as a homicide, ...


Gay News

French gay and bisexual men can donate blood starting March 16
2022-01-13
Starting in March, gay and bisexual French men will no longer be restricted from donating blood, The Hill reported. "We are ending an inequality that was no longer justified," French Minister for Solidarity and Health Olivier ...


Gay News

Amariey Lej, 20 year old Black trans woman, killed in Pennsylvania
2022-01-12
-- From a NBJC press release - WILKINSBURG, PA- The National Black Justice Coalition (NBJC) mourns the loss of Amariey Lej, a 20-year-old Black transgender woman. Amariey was shot and found lying in the streets of Wilkinsburg, Pennsylvania, on January 1, 2022. Lej ...


Gay News

Duval Princess, 24 year old Black trans woman, found shot to death in Florida
2022-01-12
--From a NBJC press release - FLORIDA — The National Black Justice Coalition mourns the loss of Duval Princess, a 24-year-old Black transgender woman. Princess was found shot in a car at Highland Square shopping center in Jacksonville, Florida, on January 3, ...


Gay News

Lightfoot announces director for new public-safety commission
2022-01-10
On Jan. 10, Chicago Mayor Lori Lightfoot announced that Adam Gross will be the first-ever executive director of the newly created Community Commission for Public Safety and Accountability. "The establishment of a community-led Commission for oversight ...


Gay News

WORLD German official, museum items, cake case
2022-01-09
WORLD COMPILED BY WCT STAFF In Senegal, lawmakers stopped from passing to parliamentary vote a draft bill that sought to toughen already severe laws against same-sex relations, Openly News reported. Gay sex is punishable by up ...


Gay News

NATIONAL California report, AIDS foundation CEO, QueerArt, intersex bill
2022-01-09
California law enforcement officials conduct body searches on Black and transgender people more often than on white and cisgender people, according to a new report from California's Racial and Identity Profiling Advisory (RIPA) Board, LGBTQ Na ...


Gay News

Laws targeting TGNC youth already proposed in several states
2022-01-08
In the first week of 2022, officials in at least seven states have already proposed laws that would limit the rights of transgender and non-binary youth, The Hill reported. Legislators in Arizona, Alabama, Indiana, Kentucky, Oklahoma, ...


 



Copyright © 2022 Windy City Media Group. All rights reserved.
Reprint by permission only. PDFs for back issues are downloadable from
our online archives. Single copies of back issues in print form are
available for $4 per issue, older than one month for $6 if available,
by check to the mailing address listed below.

Return postage must accompany all manuscripts, drawings, and
photographs submitted if they are to be returned, and no
responsibility may be assumed for unsolicited materials.
All rights to letters, art and photos sent to Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago
Gay and Lesbian News and Feature Publication) will be treated
as unconditionally assigned for publication purposes and as such,
subject to editing and comment. The opinions expressed by the
columnists, cartoonists, letter writers, and commentators are
their own and do not necessarily reflect the position of Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago Gay,
Lesbian, Bisexual and Transegender News and Feature Publication).

The appearance of a name, image or photo of a person or group in
Nightspots (Chicago GLBT Nightlife News) and Windy City Times
(a Chicago Gay, Lesbian, Bisexual and Transgender News and Feature
Publication) does not indicate the sexual orientation of such
individuals or groups. While we encourage readers to support the
advertisers who make this newspaper possible, Nightspots (Chicago
GLBT Nightlife News) and Windy City Times (a Chicago Gay, Lesbian
News and Feature Publication) cannot accept responsibility for
any advertising claims or promotions.

 
 

TRENDINGBREAKINGPHOTOS







Sponsor
Sponsor


 



Donate


About WCMG      Contact Us      Online Front  Page      Windy City  Times      Nightspots      OUT! Guide     
Identity      BLACKlines      En La Vida      Archives      Advanced Search     
Windy City Queercast      Queercast Archives     
Press  Releases      Join WCMG  Email List      Email Blast      Blogs     
Upcoming Events      Todays Events      Ongoing Events      Bar Guide      Community Groups      In Memoriam      Outguide Categories      Outguide Advertisers      Search Outguide      Travel      Dining Out      Privacy Policy     

Windy City Media Group publishes Windy City Times,
The Bi-Weekly Voice of the Gay, Lesbian, Bisexual and Trans Community.
5315 N. Clark St. #192, Chicago, IL 60640-2113 • PH (773) 871-7610 • FAX (773) 871-7609.