Distinguishing Gender Stereotype Discrimination from Sexual Orientation Discrimination

Here's a potentially important decision written by the Sixth Circuit in the case of Vickers v. Fairfield Medical Center, No. 06-0252 (6th Cir., July 19, 2006), finding (2-1), on a Rule 12(c) motion, that a Title VII plaintiff did not have a cognizable sex discrimination claim based on gender sex stereotyping.

Here's a summary of the facts of the case by the Court:

Vickers was employed as a private police officer by Fairfield Medical Center in Lancaster,
Ohio. Kory Dixon and John Mueller were also police officers at FMC and often worked with Vickers. Steve Anderson was Police Chief of FMC’s police department and was Vickers’ supervisor.

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According to the complaint, Vickers befriended a male homosexual doctor at FMC and assisted him in an investigation regarding sexual misconduct that had allegedly occurred against the doctor. Once his co-workers found out about the friendship, Vickers contends that Dixon and Mueller “began making sexually based slurs and discriminating remarks and comments about Vickers, alleging that Vickers was ‘gay’ or homosexual, and
questioning his masculinity.”

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Vickers contends that he was subject to daily instances of harassment at the hands of his coworkers from May 2002 through March 2003. The allegations of harassment include impressing the word “FAG” on the second page of Vickers’ report forms, frequent derogatory comments regarding Vickers’ sexual preferences and activities, frequently calling Vickers a “fag,” “gay,” and other derogatory names, playing tape-recorded conversations in the office during which Vickers was ridiculed for being homosexual, subjecting Vickers to vulgar gestures, placing irritants and chemicals in Vickers’ food and other personal property, using the nickname “Kiss” for Vickers, and making lewd remarks suggesting that Vickers provide them with sexual favors.

Allegations also concerned pervasive sexuall-oriented physical harassment.  Nevertheless, based on this set of facts, the court found, on the pleadings, that:

We conclude that the theory of sex stereotyping under Price Waterhouse is not broad enough to encompass [this case]. The Supreme Court in Price Waterhouse focused principally on characteristics that were readily demonstrable in the workplace, such as the plaintiff’s manner of walking and talking at work, as well as her work attire and her hairstyle . . . . Later cases applying Price Waterhouse have interpreted it as applying where gender non-conformance is demonstrable through the plaintiff’s appearance or behavior . . . . Rather, the harassment of which Vickers complains is more properly viewed as harassment based on Vickers’ perceived homosexuality, rather than based on gender non-conformity.

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Ultimately, recognition of Vickers’ claim would have the effect of de facto amending Title
VII to encompass sexual orientation as a prohibited basis for discrimination.

Let me blunt. I think this decision is just plain wrong.  In cases such as Oncale, the actual sexual orientation of the person did not matter (no one even knew Oncale's sexual orientation).  All that mattered was that the plaintiff was subject to degrading, usually physically, behavior by other men because he was not living up to some gender stereotypical norm.

I am at a loss as to why this court considered this claim one of discrimination based on perceived homosexuality, as opposed to a claim of discrimination based on gender non-conformity.  Is the court serious that such a distinction should really come down to whether a man acts like a woman or walks like a woman?

I think the Nichols case from the 9th Circuit is a much more coherent view for these types of sexual discrimination claims involving gender non-conformity.

Finally, the fact that a case like this could be decided on a judgment on the pleadings is beyond me.  Is there really nothing that could have been gained by allowing discovery to fill out the record in this case?  In this regard, I agree with Judge Lawson's dissent:

However, these distinctions can be complicated, and where, as here, the plaintiff has
pleaded facts from which a fact finder could infer that sex (and not simply homosexuality) played a role in the employment decision and contributed to the hostility of the work environment, drawing the line should not occur at the pleading stage of the lawsuit.

Here's hoping the 6th Circuit, sitting en banc, reverses this bad boy.

PS