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Tuesday, March 14, 2017

Failing to Conform to Gender Stereotype Claims Increase

By Thomas Eden

Jameka Evans worked at Georgia Regional Hospital as a security officer from August 1, 2012, to October 11, 2013, when she left voluntarily. During her time at the Hospital, she claimed that she was denied equal pay or work, harassed, and physically assaulted or battered. Evans also alleged that she was discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a “traditional woman[ly] manner.” Evans presented herself as a gay woman, who claimed in her pro se lawsuit that while she did not broadcast her sexuality, it was “evident that she identified with the male gender, because of how she presented herself (male uniform, low male haircut, shoes, etc.).”

Evans contended she was punished because her status as a gay female did not comport with her supervisor’s gender stereotypes and this caused her to experience a hostile work environment. After Evans lodged her complaints about these violations, her supervisor asked Evans about her sexuality, causing Evans and “others” to infer that her sexuality was the basis of her treatment.

Attached to Evans complaint was a “Record of Incidents.” This report stated that her supervisor had repeatedly closed a door on Evans in a rude manner, that she experienced scheduling issues and a shift change, that a less qualified individual was promoted as her supervisor, she was scrutinized and harassed and that someone had tampered with her equipment, including her radio, clip, and shoulder microphone.

In a case likely headed to the U.S. Supreme Court, the split Eleventh Circuit panel on March 10 held that Anti-Gay Bias is not prohibited under Title VII. This was an affirmation of the district court’s dismissal of Evan’s suit against the hospital alleging she was harassed because she’s a lesbian and didn’t conform to gender norms, relying on a decades-old 11th Circuit decision that “discharge for homosexuality isn’t prohibited under Title VII.” However, the panel vacated the district court’s order dismissing Evans’ claim that she was discriminated against for “failing to conform to gender stereotypes,” and remanded it back to the lower court with instructions to grant her leave to amend that claim. 

In a concurring opinion, Circuit Judge William H. Pryor Jr. (on the Trump Supreme Court list) wrote: “unsurprising reality that some individuals who have experienced discrimination because of sexual orientation will also have experienced discrimination because of gender nonconformity by no means establishes that every gay individual who experiences discrimination because of sexual orientation has a ‘triable case of gender stereotyping discrimination.” 

Common Sense Counsel: this appears to be a case where stray word by a supervisor about Evan’s “sexuality” complicated a simple discharge, and otherwise non-actionable slights. There is simply no substitute for training your supervisors in effective and defensible discipline and termination. Also, the new claim of “failing to conform to gender stereotypes” appears to be gaining traction in the courts. So train your supervisors not to use lose words like “attitude” or “company culture” or “sexuality” or similar phrases that lack defined meaning in employment law, as the courts may assign meaning you do not like.