No, Debbie, Title VII does NOT prohibit sexual orientation discrimination in employment. Hello?

Assembly Chair Debbie Ossiander

Assembly Chair Debbie Ossiander

Anchorage Assembly Chair Debbie Ossiander made extensive  comments on August 11 explaining why she would not support passage of the Anchorage equal rights ordinance, AO 2009-64. [Ref #1] Included in her comments was her opinion about Title VII f the Civil Rights Act of 1964 (Pub. L. 88-352), as follows (tip o’ the nib to John Aronno of Alaska Commons for transcription):

I also discovered that, though what we are proposing as protection at the municipal level, through the Equal Rights Commission, there are some federal regulations and laws that could pertain here. I particularly looked at Title VII, what was covered in Title VII, I read some court cases, I read some court cases about Title VII, it’s basically the civil rights law of the United States, and it basically covers, in my mind, employee discrimination, including same sex employee discrimination, for businesses with over fifteen employees.

Pamela Kelley (right) talking with Jean Craciun during a break at the July 21 Anchorage Assembly meeting

Pamela Kelley (right) talking with Jean Craciun during a break at the July 21 Anchorage Assembly meeting

This was in spite of testimony before the Assembly on July 21 by Anchorage attorney and UAA Justice professor Pamela Kelley to the effect that, no, in fact existing law does not protect LGBT people from discrimination [Ref #2] and a followup letter Prof. Kelly sent the following day to Ossiander and to Assembly Member Jennifer Johnston about a U.S. Supreme Court case arising out of Title VII, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). [Ref #3] As discussed in my post about Prof. Kelley’s letter, Oncale is one case which demonstrates  how narrowly the Supreme Court interprets Title VII’s provisions regarding sex discrimination — which does not extend to sexual orientation. [Ref #4]

Now comes a case decided last Friday in the 3rd U.S. Circuit Court of Appeals, Prowel v. Wise Business Forms. This case involved a self-described effeminate gay man who claimed his employer discriminated against him because he failed to conform in his mannerisms, style of dress, and interests to masculine gender role stereotypes, in violation of Title VII’s prohibition of sex discrimination. [Ref #5] The 3rd Circuit based its decision in Prowel on another Title VII case, the 1989 U.S. Supreme Court decision Price Waterhouse v. Hopkins, which ruled in favor of a woman who had been discriminated against because she did not conform to traditional norms of femininity. [Ref #6] As summarized by Marquette law professor Paul Secunda,

That’s called sex-stereotype discrimination… when an employer says to someone “you’re not acting ‘female enough’ or ‘male enough,’ therefore we’re firing you.” [Ref #7]

In other words, Price-Waterhouse v. Hopkins clarified that by making sex discrimination in employment illegal, Title VII also made  sex-stereotype discrimination illegal.  But it did not make sexual orientation discrimination illegal, as demonstrated by numerous references in Prowel. For example:

  • “a claim for sexual orientation discrimination — which is not cognizable under Title VII” [Ref #5, p. 10]
  • quoting from a prior 3rd Circuit decision in Bibby v. Philadelphia Coca Cola Bottling Co. [Ref #8], “Title VII does not prohibit discrimination based on sexual orientation. Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation” [Ref #5, p. 10]
  • again, in reference to the Bibby decision, “Despite acknowledging that harassment based on sexual orientation has no place in a just society, we explained that Congress chose not to include sexual orientation harassment in Title VII” [Ref #5, p. 12]
Emmett Honeycutt (portrayed by Peter Paige) in Showtimes Queer As Folk -- another Pennsylvanian with pizzazz. Showtime promotional image.

Emmett Honeycutt (portrayed by Peter Paige) in Showtime's "Queer As Folk" — like Brian D. Prowel, a Pennsylvanian with "pizzazz". (Showtime promotional image)

The question in Prowel was whether Brian D. Prowel, the plaintiff, had been discriminated against for being homosexual — in which case he had no recourse for a complaint under Title VII — or for not conforming to gender stereotypes — in which case he did.  The court was clear in any case that,

There is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not. [Ref #5, p. 17; emphasis in original]

and hence concluded,

As long as the employee — regardless of his or her sexual orientation — marshals sufficient evidence such that a reasonable jury could conclude that harassment or discrimination occurred “because of sex,” the case is not appropriate for summary judgment. For the reasons we have articulated, Prowel has adduced sufficient evidence [of sex-stereotyping discrimination] to submit this claim to a jury. [Ref #5, p. 17]

What this means in essence is that within the 3rd Circuit’s jurisdiction at least — which includes Pennsylvania, New Jersey, Delaware and the Virgin Islands [Ref #9]:

  • An effeminate gay man fired from his job might have recourse under Title VII, but only if he can prove he was discriminated against based on gender stereotypes, rather than sexual orientation.  A gay man who’s butch?  SOL.
  • Likewise, a lesbian with a mannish or butch presentation (like me!) might have recourse — but again, only if she can prove she was canned for being butch, not for being a lesbian.  But a femme lesbian?  Too bad so sad.

The 3rd Circuit’s decision is not precedential for Alaska, which is covered by the 9th Circuit Court of Appeals.  But there is no reason to suspect that the judges of the 9th Circuit have any different understanding than the judges of the 3rd Circuit when it comes to the relevance of Title VII to sexual orientation discrimination.  Let me repeat: SOL.  Let me repeat: Too bad, so sad.

So display your gender stereotype noncomformity freely. But keep your sexual orientation firmly in the closet. At least, that’s what the case law on Title VII has to say about it. And that will remain the case until, if and when, the U.S. Supreme Court rules that Title VII’s sex discrimination provision includes sexual orientation discrimination, or until Congress amends Title VII to add sexual orienation through an Employment Non-Discrimination Act (ENDA), as has been proposed in both houses of Congress recently. [Ref #7] Until then, as Paul Secunda explained to the Wall Street Journal’s Law Blog,

…while certain states and cities have laws prohibiting employment discrimination on the basis of sexual orientation, the Supreme Court has never ruled that sexual orientation is covered by Title VII. [Ref #7]

It may all the same be true what Debbie Ossiander said of Title VII, that “it basically covers, in my mind,. employee discrimination, including same sex employee discrimination.”

But what counts with Title VII isn’t what’s in Debbie Ossiander’s mind — but in what the courts have ruled. So while she may have partially salved her own conscience with her mistaken notions about Title VII, reality is that thanks to her “no” vote on AO 2009-64, and what seems likely to be her refusal to override Mayor Sullivan’s veto of it, LGBT people in Anchorage have no more protection from the unfair job discrimination than they they do in housing, public accommodations, financial practices, and municipal practices.

In the meantime, Brian D. Prowel: I wish you the very best. What your coworkers and employer subjected you to was inexcusable.  Readers of this blog can read the full court decision to see just how nasty they were.  And rest assured that some Anchorage employers and coworkers are every bit as nasty.  Too bad. So sad. No recourse here.

References

  1. 8/13/09. “Third time in 35 years: Anchorage’s equal rights ordinance” by Melissa S. Green (Henkimaa).
  2. 7/23/09. “Kelley testimony 1: Contrary to prior Assembly testimony, existing law does not protect LGBT people from discrimination” by Melissa S. Green (Henkimaa).
  3. 7/23/09. “Kelley testimony 2: Oncale Supreme Court decision on workplace sexual harassment does not protect LGBTs from discrimination” by Melissa S. Green (Henkimaa).
  4. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).
  5. 8/28/09. Prowel v. Wise Business Forms. U.S. Court of Appeals for the Third Circuit. Opinion written by Judge Thomas M. Hardiman.
  6. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
  7. 9/1/09. “On Sexual-Orientation and Title VII: Are Changes Afoot?” by Ashby Jones (WSJ.com Law Blog).
  8. Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001); cited in Prowel v. Wise Business Forms.
  9. 8/29/09. “Appeals court allows gender stereotype case” by Paula Reed Ward (Pittsburgh Post-Gazette).

[Crossposted at Celtic Diva’s Blue Oasis]

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5 Responses to No, Debbie, Title VII does NOT prohibit sexual orientation discrimination in employment. Hello?

  1. mpb says:

    I noticed that the city already prohibits discrimination on the basis of marital status. Alaska is a state in which some people, on the basis of how they were born, are prohibited from marrying. How does this fit into the discussion?

  2. Geraldine says:

    Alaska’s Legal Beagle of Bloggers.

  3. electrolass says:

    Ms. Ossiander’s interpretation of the law, like some folk’s fundamentalist interpretation of the bible, is very literal. She wants everything clearly defined and neatly laid out. No law can be bulletproof, and weaknesses in the law will be found and tested in court. Hence the three branches of our government: legislative, judicial, executive. The legislative branch writes the laws, the executive branch implements policy in accordance with those laws, and the judicial branch sets punishments for failing to uphold those laws or abide by the policies stemming from them. Perhaps Ms. Ossiander is less afraid of the interpretation of our court system, and more inclined to fret over the literal interpretation the religious right. Well, the Municipal bylaws state that the fundamentalist do not have the right to interpret our city laws, and Ms. Ossiander is beholden to the dictates of Municipal mandates and not fundamentalist judgement. If her convictions lead her to admit that LGBT people and people with gender identity issues are being treated badly, then she should pass the ordinance and let municipal lawyers decide what does or does not apply to this legislation. As all legislation must be tested and proved worthy, so should this ordinance.

    The right wing has battered and bruised the public civic psyche with their insipid and constant attacks on all three branches of government (local, state and federal) to such an extent that citizens no longer trust each to do what must be done to maintain the system of checks and balances necessary to protect our rights under the Constitution, state and federal. The right wing attacks not only our government, but our belief in government.

    So the mayor vetoed the ordinance, what do we think the assembly wants us to do next? Have we asked the assembly members who supported the ordinance what they want us to do next? I know that Equality Works suggested we turn attention to the national level and support the federal anti-discrimination bill. I agree, but what about the grassroots aspect of this fight? Did we not all come together at the Democratic caucus to support grassroots agendas? Did we not all witness the power of grass roots activism during the years that Howard Dean pushed the Democratic party to get out the vote? What happened after Obama was elected? Have we all fragmented into our little groups once more to took up once again our specific battles? What do we expect when we choose to approach reform and pursuit of equality in this manner? Small groups can be isolated, and cut off. That is what the fundamentalist right tried to do with this issue, but we saw evidence that the larger community of progressive still supports us. We need to tap into that community, throw aside any of our own misgivings (that once again LGBT will help liberals who will fail to give us a helping hand up), and get involved on the larger scale of progressive politics. As terrible as having our rights denied, the fundamentalist are in pursuit of a much larger goal, and to deprive them of that larger goal, we must continue to act as a unified front.

    My argument with the fundamentalist movement goes far beyond the issue of gay rights. I vehemently disagree with their attempt to interpret the Constitution with the same selective literalism they apply to the Bible. I served my country to defend the Constitution. I did so because the principles it espouses remains through the ages. It is an extension of every other piece of codification that has helped humanity, step by step, society by society, organize itself to do more than merely exist hand to mouth, harvest to harvest, kill to kill. People come and they go. We do are best to maintain the equilibrium of justice from generation to generation in the hopes that are children’s children won’t have to reinvent the wheel and fight and die to establish a new system or revamp the one they inherited. Extreme fundamentalist have hijacked the Bible that I grew up respecting for the allegorical and metaphorical power of its message, and now they want to twist my Constitution as well.

    We are all familiar by now with the habit fundamentalist have of picking and choosing which portions of the Bible they wish to interpret word for word. They seek to apply the same tactics with our Constitution. Gun rights for all (no matter how unfit to handle a weapon they may be), but that stupid first amendment is only for our preachers and lay persons who have the authority of God backing their every move. Or, we believe in the need for a strong judicial branch, but only if they abide by the wishes or OUR religious leadership, because only they have a direct line to God.

    What do we think? We wanted this ordinance passed, and I think we should keep at it. We should believe in the efforts of the assembly folk who pushed for its passage. Let’s ask them what we should do and do it. In addition, we, the LGBT community need to outreach to the larger community and let them know exist. I am not talking about parades, or t-shirts or slogans, but the real deal. We need to open up, not just be out. I love what Harvey Milk did during one of his many campaigns to run for office (this man understood the need for repetition) when he asked his associates to make certain that they had come out to their parents and to those closest to them. We need to highlight what we have to offer this community; what they stand to lose if we are pushed back into the closets, and connect more deeply with those who agree that we aren’t being treated very nicely by a relative minority of people.

    Well, off my soap box. I am a realist, but I am also an optimist. We have come a long way since ’93. We can go much further, but to do so we need to remain a part of the larger progressive agenda. Other than remote parts of Canada, and various tiny islands in the Atlantic and Pacific, the places to “get away” from intolerance and prejudice are shrinking rapidly. We can flock to and hover around the hubs of big cities, and the usual avant guard locations, or we can continue to push for the right to integrate and function as normal citizens in the towns and cities of our choosing. Personally, I like it here in Anchorage, and I like being a part of my community. It isn’t perfect, but I have come too far to fall back now.

  4. Jackie Horner says:

    I am straight but do not like discrimination of any kind. You guys are way over me in the legalities but what I picked up thru out the hearings was their comment that there were no records of discrimination – and I also picked up that records cannot be kept because there are no laws against this type of discrimination. Well why the hell not is my question. If they refuse to pass this anti-discrimination ordinance after all the testimony, then they sure as hell owe the LGBT community the right to make complaints & start keeping records of those complaints. I hope you know that you do have a lot of support from the more progressive elements of our society, unfortunately apparently not enough of the progressives are in position to make a difference.

  5. Naomi Schiff says:

    Just a tiny functional comment on your always-excellent posts: When Celtic Diva picks up your posts, the red quotes and extracts appear on a blue background and become entirely illegible! Might be good to send them over to her in good ol’ black and white. . .

    Thank you for the work you are doing!

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