Friday, January 25, 2019

3rd Circ. Sex Bias Stance Could Stand Review, Pa. Judge Says - Law360

US 3rd Circuit Court of Appeals' old ruling that sexual orientation bias isn't covered by the Federal Civil Rights Act is being questioned by a Pa. federal judge 3rd Circ. Sex Bias Stance Could Stand Review, Pa. Judge Says By Vin Gurrieri Law360 (January 24, 2019, 9:26 PM EST) -- A heterosexual Philadelphia Housing Authority worker can’t pursue claims that he was treated antagonistically by a manager who perceived him to be gay, a Pennsylvania federal judge ruled Thursday, saying his hands were tied by a potentially outdated Third Circuit precedent that sexual orientation bias isn’t covered under Title VII. U.S. District Judge Gerald Austin McHugh dismissed part of a suit by plaintiff Shaun Guess, a housing authority employee who alleged that he was paid less than his female counterparts and was subjected to hostile treatment based on the perception that he is homosexual, in violation of Title VII of the Civil Rights Act. Judge McHugh agreed with the housing authority that claims Guess made alleging sexual orientation bias weren’t viable since Third Circuit precedent left him little wiggle room to rule otherwise. But the judge opined that circuit precedent he is bound by — a 2001 case called Bibby v. Philadelphia Coca Cola Bottling Co. — might be outdated in light of society’s updated understanding of sexuality in the two decades since it was decided. “I am not empowered to overrule that decision, although plaintiff’s arguments urging me to do so certainly warrant discussion,” Judge McHugh said. “Plaintiff rightly questions the foundations upon which Bibby rests.” Guess, who quit his job at the housing authority in mid-2017, filed suit in July. He alleged in part that he was routinely assigned tasks that were stereotypically male, like lifting boxes and other forms of manual labor, and that a supervisor hurled a gay slur at him when he objected, even though Guess isn’t gay. Guess responded to the incident by complaining to human resources in August 2017. They informed him that even though the supervisor’s behavior, if borne out, could be a violation of the company’s behavior policy, it wouldn’t necessarily amount to an equal employment opportunity violation, according to the complaint. After he reported the incident, the supervisor texted gay slurs to Guess several times and took issue with how he handled it. In a separate incident, Guess also reported a colleague to HR who had called him a “girl.” He ultimately quit his job and filed a discrimination charge with the U.S. Equal Employment Opportunity Commission in February 2018 prior to filing the instant suit. As part of the ruling, Judge McHugh rejected Guess’ argument that his hostile work environment claim should stay alive under the legal theory that gender stereotyping is a form of sex discrimination, saying the former housing authority worker is right that such a claim is legally allowed but that his complaint wasn’t structured in a way that could sustain it. “Plaintiff has framed his hostile work environment claim exclusively as discrimination on the basis of perceived sexual orientation,” the judge said. “As discussed above, such a claim is not currently recognized within the Third Circuit.” Similarly, Judge McHugh tossed part of Guess’ claim of pay discrimination under Title VII that was based on sexual orientation but said the housing authority hasn’t even sought to dismiss the portion of that claim that alleged he was discriminated against for being a man. Judge McHugh noted that the dismissal of those claims was without prejudice, meaning they can be brought again. But more broadly, Judge McHugh acknowledged that Guess’ argument that sexual orientation bias qualifies as a form of gender stereotyping discrimination “merits serious consideration,” saying that the line between sexual orientation and gender stereotyping has been a tough one for district courts to draw, since allegations sometimes fit in both of those buckets. That has often resulted in arbitrary distinctions being made by district courts to separate the two, he said. “This leads me to question whether there is any meaningful difference between sexual orientation discrimination and gender stereotyping discrimination,” Judge McHugh said, adding that gender stereotypes “appear to lie at the heart of sexual orientation discrimination cases.” “I am at a loss to conceive of a sexual orientation discrimination claim that could occur in so much of a vacuum as to be free of any gender stereotyping,” he added. “Even in a hypothetical case of sexual orientation discrimination absent any typical masculine or feminine stereotyping, there remains the assumption that men should only engage in relationships with women and vice versa.” The judge also noted that it's unclear whether the Third Circuit in Bibby even considered whether sexual orientation bias falls under Title VII’s sex discrimination umbrella, noting that society’s “understanding of the complexity of human sexuality has advanced” in the years since Bibby was decided. The fact that the EEOC as well as the Second and Seventh Circuits, among others, have adopted the view that sexual orientation does fall within Title VII’s purview “suggests” that the Third Circuit should itself consider the arguments that led to those decisions if it gets a chance to give Bibby a fresh look. The hot-button issue of how far Title VII’s ban on sex discrimination stretches has been front of mind for many employment lawyers over the past decade and is currently on the U.S. Supreme Court’s doorstep, where three certiorari petitions are pending that could clarify the issue. The three cases are Altitude Express v. Zarda out of the Second Circuit; Bostock v. Clayton County, Georgia, from the Eleventh Circuit; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC out of the Sixth Circuit. The first two involve sexual orientation and the third centers on gender identity. A decision by the justices on whether to hear the cases is imminent as the petitions have already been considered multiple times. Counsel for both parties weren’t immediately available for comment Thursday. Guess is represented by Justin F. Robinette. PHA is represented by Kelsey Beerer of Buchanan Ingersoll & Rooney PC and Catherine Straggas of Margolis Edelstein. The case is Shaun Guess v. Philadelphia Housing Authority, case number 2:18-cv-02948, in the U.S. District Court for the Eastern District of Pennsylvania.

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