Court decides it doesn’t have to rule on discrimination based on sexual orientation

A federal court hearing an anti-gay discrimination case in Texas has avoided ruling on whether sexual orientation discrimination is sex discrimination under Title VII. It did so by concluding that the employee didn’t show she had actually experienced sex discrimination.

Recent case: Robin is a black lesbian woman. She worked full time as a probationary police officer in the Humble Independent School District for about nine months until she quit.

During that time, she complained that her supervisor was hostile and told her that she “looked gay” because she dressed, spoke and acted in a manner that wasn’t as feminine as other women. She alleged he delayed her training because of her sexual orientation and gave her a substandard patrol car. She claimed she had been forced to resign.

Robin sued, alleging she had been constructively discharged because of her sexual orientation.

The court first reviewed the law under Title VII. It explained that while sexual orientation discrimination has long been considered outside the scope of sex discrimination, several federal appeals courts have now ruled that discrimination on the basis of sexual orientation is sex discrimination. The court pointed to recent cases in the 2nd and 7th Circuit Courts of Appeals. (See “Another circuit rules anti-gay bias is illegal.”)

But the court said it did not need to make that call in this case because Robin had not shown she was the victim of sex discrimination. She would have to show that she had been treated differently than other workers outside her sex. She couldn’t point to any probationary police officer outside her protected class (that is, a man) who had been treated more favorably. She didn’t show that men got the better cars, or were never criticized for nonconforming look or dress, for example. Robin’s discrimination claims were dismissed.

But Robin had also complained that her supervisor bombarded her with frequent comments about other women’s physical attributes, purportedly because he believed Robin, as a gay woman, would share his interests in female anatomy. Robin claimed she complained to HR, but that no one ever investigated. Finally, she claimed retaliation—being forced to resign as punishment for going to HR. The court said those claims could move forward. (Carr v. HISD, SD TX, 2018)

Advice: Carefully monitor the progress of the EEOC’s push to expand Title VII sex discrimination provisions to cover sexual orientation. It has filed test cases in many federal trial courts, cases that are working their way through the legal system. Note that the Department of Justice has announced it does not believe the EEOC’s position is legally correct.

It is increasingly likely that a 5th Circuit (which covers Texas employers) case will be decided in the near future. And because the Texas Labor Code’s sex discrimination provision follows Title VII, such an expansion would likely change that law’s scope, too.