The same court has ruled that it does
protect transgender people, though

by Eric Resnick

Cincinnati--The Sixth Circuit Court of Appeals says that if the 1964 Civil Rights Act could protect a gay cop from employment discrimination, then all gays and lesbians would have to be protected--and that just can�t be.

The 2-1 decision was rendered July 19 in the case involving police officer Chris Vickers and his former employer, the Fairfield Medical Center of Lancaster, Ohio, along with his supervisor, two co-workers and a co-worker�s spouse.

Had Vickers prevailed, it would have been the first time the federal civil rights law would have protected a gay person from discrimination on the basis of sex-stereotyping.

The legal path is the same one taken in the landmark Smith v. Salem suit two years earlier by the same court.

That case extended protection to a transsexual firefighter. The result was later duplicated, again by the same court, in Barnes v. Cincinnati, protecting a transsexual police officer.

All follow the 1989 U.S. Supreme Court decision Price Waterhouse v. Hopkins, in which the high court said that even though it was not specifically designated by Congress, sex-stereotyping is prohibited under Title VII of the act.

In the other cases, the Sixth Circuit agreed that the sex-stereotyping occurred when Smith and Philecia Barnes did not conform to their co-workers� expectation of what a man should act like.

In this case, Vickers argued that he also did not conform to his co-workers� expectation of what a man should act like.

As a result, Vickers was subject to harassment, including some that was life threatening, for 14 months until he quit in 2002. As a police officer trained in gathering evidence, Vickers collected a substantial amount of it, including surreptitious recordings and photos.

Vickers is represented by transgender attorney Randi Barnabee of Bedford, who also represented firefighter Jimmie Lee Smith.

Barnabee said she will ask the full court to overrule the three judge panel, and she thinks there�s a good chance they will. If not, she will appeal it to the Supreme Court.

The defendants were represented by William Case of the Columbus firm Thompson Hine.

The decision, which took an unusually long time to arrive, affirmed the 2004 decision by District Court Judge Gregory L. Frost, a George W. Bush appointee, that sex-stereotype-based discrimination is not actionable when the victim is gay or lesbian, whether real or perceived.

The appeal was argued June 8, 2005 before G. W. Bush appointee Judge Julia Smith Gibbons and George H. W. Bush appointee Senior Judge Edward Eugene Siler, and District Judge David M. Lawson, a Clinton appointee, sitting by designation from the Eastern District of Michigan.

Gibbons and Siler ruled against Vickers. Lawson strongly dissented in what Barnabee calls �a road map to the cert petition� appealing it to the Supreme Court.

Writing for the majority, Gibbons declared, �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.�

Gibbons continued, �In all likelihood, any discrimination based on sexual orientation would be actionable under a sex-stereotyping theory if this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.�

Citing a Second Circuit decision, Gibbons wrote, �Like other courts, we have therefore recognized that a gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII.�

Gibbons stated that in order to make this case, Vickers would have had to prove that as a man, he was exposed to �disadvantageous terms or conditions of employment� that women employed by the hospital were not exposed to.

�Nothing in Vickers� complaint indicates that his harassers acted out of sexual desire,� wrote Gibbons in support of her theory that Vickers suffered no sex harassment.

�Similarly, the complaint does not support an inference that there was general hostility toward men in the workplace,� Gibbons said. �Finally, Vickers included no information regarding how women were treated in comparison to men at Fairfield Medical Center. In fact, [defendants] maintain that Vickers worked in an all-male workforce, an assertion that Vickers has apparently not disputed.�

In his dissent, Lawson contends that Vickers had a valid Title VII claim that should not have been dismissed and refutes, point by point, each of the majority�s claims otherwise.

�I believe that such a reading of the complaint in this case is too narrow and imposes an obligation on the plaintiff that is more exacting at this stage of the proceedings than is required by the Federal Rules of Civil Procedure,� wrote Lawson.

Lawson also took issue with Gibbons� methodology.

�Most of the cases relied on by the majority were decided on summary judgment or after trial,� wrote Lawson.�

�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,� wrote Lawson, �drawing the line should not occur at the pleading stage of the lawsuit.�

Lawson examined several of Vickers� allegations, including defendants rubbing sanitary napkins in his face, defendants saying his �plumbing is hooked up wrong� and that he �has titties� and calling him their �favorite bitch.�

Lawson wrote, �These allegations, in my view, provide a basis for the inference that the plaintiff was perceived as effeminate and therefore unworthy to be considered �a real officer.�

�The permissible conclusion that emerges is that [Vickers] was not tolerated--and the defendants made the workplace environment hostile--because the job required only �manly men,� not woman-like ones or women themselves.�

�Therefore,� Lawson opined, according to the framework of the Smith case, Vickers �has sufficiently pleaded claims of sex-stereotyping and gender discrimination.�

Barnabee believes that since Smith was upheld en banc, and the number of judges who were part of the Smith and Barnes decisions represents a sizeable percentage of the entire court, that this decision has a better than average chance of being reversed.

If it is, it will go back to Frost�s court for trial.