US District Court Judge Myron Thompson, Middle District of Alabama, recently issued a decision adopting the EEOC's rationale in the Baldwin matter, which found that sexual orientation discrimination is actionable. Professor Arthur Leonard, in his blog, artleonardobservations.com summed up the case quite well:
Isaacs, a gay man, worked for Felder Services as a dietician for about six months. Felder provides various services to healthcare facilities. Isaacs was assigned to work at Arbor Springs Health and Rehabilitation Center under a contract that Felder had with that organization. He complained that he was subjected to a discriminatory hostile environment at Arbor Springs, and relayed this complaint back to Felder, which asked Arbor to investigate and report.
Meanwhile, Isaacs had also been assigned by Felder to provide dietician services at another facility, in Florala, Alabama, once every three weeks. Isaacs had been injured in a car accident and asked for permission “for a man he identified as his brother but who was actually his husband to drive him to Florala, and for the two to stay overnight there,” wrote Judge Thompson, observing that there was a “dispute” about whether Isaacs was authorized to seek expense reimbursements on behalf of his “brother” for these expeditions. He submitted these expenses, and also brought his mother along on some of these trips and submitted for reimbursement of her expenses as well. An administrative assistant at Felder Services raised questions about these expense reimbursements, leading to an internal investigation at Felder. This investigation led to the conclusion that Isaacs was submitting unauthorized expenses for reimbursement, and then Felder's human resources director received the result of Arbor's investigation of Isaacs' allegations about harassment, which found his charges to be unsubstantiated. The results of the expense reimbursement investigation were brought to Felder's president by the HR director, and they decided to terminate him “based on the improper reimbursement requests.”
Felder asserted Title VII claims of discrimination (by firing him) on the basis of his sex, gender non-conformity, and sexual orientation, hostile environment, sexual harassment, and retaliation for claiming about the harassment. The company's motion for summary judgment was referred to a magistrate judge, who recommended granting the motion as to all three claims. Among other things, the magistrate judge asserted that the sexual orientation claim should be rejected as not actionable under Title VII.
After finding that there were no objections to the magistrate judge's recommendations and after an independent and de novo review of the record, Judge Thompson granted summary judgment as to all of Isaacs' claims. Judge Thompson went on to state that the 11th Circuit has not addressed the issue of whether sexual orientation discrimination is included or contemplated by Title VII, and that Judge Thompson “agrees instead with the view of the Equal Employment Opportunity Commission that claims of sexual orientation-based discrimination are cognizable under Title VII.” The court adopted the reasoning of the EEOC in EEOC Appeal No. 012013080, 2015 WL 4397641, where the EEOC “explains persuasively why ‘an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII…To the extent that sexual orientation discrimination occurs not because of the targeted individual's romantic or sexual attraction to or involvement with people of the same sex, but rather based on her or his perceived deviations from ‘heterosexually defined gender norms,' this, too, is sex discrimination, of the gender-stereotyping variety.'” [Citation omitted].
Practice pointer. As far as I can tell, Judge Thompson is the first Federal judge to adopt the EEOC's reasoning concerning sexual orientation based discrimination under Title VII. If your business has a case pending, or, in the future, has a case pending, before Judge Thompson, it appears he will recognize such a cause of action. However, there must be sufficient proof of the discrimination or he will grant summary judgment as he did in the Isaacs' case. BUT, until there is guidance from the 11th Circuit, other courts of appeals, or the US Supreme Court, confusion will reign. Employers must tread carefully, at least in the Middle District of Alabama, if disciplining an employee who may be in a position to claim sexual orientation based discrimination, and should consult with counsel before deciding on the discipline to be imposed to ensure compliance with Title VII.