Lancaster police officer will appeal to U.S. Supreme Court

by Eric Resnick

Cincinnati--The Sixth Circuit Court of Appeals has said again that the 1964 Civil Rights Act can protect transgender people from employment discrimination, but not gays and lesbians.

The gay police officer who got the decision will appeal it to the U.S. Supreme Court.

The full court denied a petition November 8 by officer Chris Vickers to review a 2-1 panel�s July decision that his� �gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII.�

In the suit, Vickers claims that his former employer, Fairfield Medical Center of Lancaster, southeast of Columbus, and his former supervisor, two co-workers and a co-worker�s spouse, harassed him and put him in physical danger because he did not conform to their expectation of what a man should act like.

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

The legal path in the case is the same as the one taken in the landmark Smith v. Salem, Ohio 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 1964 Civil Rights Act.

Had Vickers prevailed, it would have been the first time the 1964 law would have protected a gay person from employment discrimination.

In the petition for the decision to be reconsidered en banc, or by the entire 21 member bench, Vickers� attorney Randi Barnabee of Bedford claimed that the court �repudiated� its own decisions in Smith and Barnes by not applying the same logic to Vickers.

Barnabee also represented firefighter Jimmie Lee Smith in that case.

�The majority here superimposes the classification of �homosexual� on [Vickers] in order to legitimize the discrimination,� wrote Barnabee.

Barnabee also argued that the three judge panel �conflates� Vickers� homosexuality, which is not protected, with gender non-conformity, which is, undermining the sex-stereotyping allegations.

�The fact that defendants in this case perceived [Vickers] to be homosexual does not mean that all of their discriminatory acts against him--even those based on gender non-conforming behavior - were [with more convincing force] related to his perceived homosexuality,� Barnabee argued.

Two of the three judges on the panel said that Vickers had no claim because some of the behavior he was harassed for, including vacationing with another man, was not �observed at work or affecting his job performance.�

Barnabee refuted that, arguing that Vickers never told his co-workers he is gay. Barnabee also argued that the harassment started when Vickers conducted an investigation of a crime at the hospital in which the complainant was gay. The other officers began harassing Vickers because he was friendly and helpful to the victim.

�Moreover, the majority also fails to recognize that even though some of the discriminatory conduct alleged in this case relates to presumed or imputed non-stereotypical sexual practices, Defendants� presumptions regarding such practices could only have been formed on the basis of [Vickers�] mannerisms and behavior on the job,� wrote Barnabee.

�Therefore,� Barnabee continued, �whether or not Vickers is homosexual has no bearing on his ability to state a cause of action under Title VII based on the discrimination he endured because of his perceived gender nonconformity.�

Barnabee asserted that an full court review was necessary to �secure and maintain uniformity of the court�s decisions.�

�Because the opinion of the majority of the three-judge panel in this case errs in application of Smith and Barnes and effectively negates those decisions for all practical purposes . . . review is necessary to clarify the resulting confusion this case has engendered in Title VII jurisprudence, both in this circuit and beyond,� concluded Barnabee.

The petition was not granted, however, allowing Title VII to protect transsexuals from discrimination, but not gays and lesbians.

Barnabee believes the case is �ripe� for the U.S. Supreme Court to decide, and she will petition the high court to hear it within the required 90-day time period.

The appeal to the Sixth Circuit was Vickers� right. Appeals to the high court are at its discretion. Four of the nine justices must agree that the case needs to be heard in order to settle conflicts between circuits or conflicts within a circuit, as Barnabee believes this case is.