The U.S. 1st Circuit Court of Appeals—which covers Maine, Massachusetts, New Hampshire, and Rhode Island—recently upheld a six-figure jury award for a firefighter’s “sex-plus” discrimination claim, ruling that federal antidiscrimination law extends protections to gay and lesbian workers in cases where they claim discrimination based on both their gender and sexual orientation.
The ruling, Franchina v. City of Providence, contributes to a widening division among federal courts about whether Title VII of the Civil Rights Act of 1964—which prohibits employment discrimination based on race, color, religion, sex, and national origin—covers discrimination based on sexual orientation and gender identity.
More Than Just ‘Locker Room Talk’
In 2002, “Fran” was a city of Providence firefighter assigned to North Main Street Fire Station. She rose through the ranks quickly. By 2006, she had been promoted from rescue technician to acting rescue lieutenant, and then to rescue lieutenant.
That year, Fran was assigned to work a shift with “Tony,” a firefighter with a history of sexually harassing female colleagues in the department. (Previous harassing conduct by Tony had contributed to a 1st Circuit decision in 2001 finding the city liable for claims filed by a different female firefighter.)
Within moments of meeting her, Tony inquired if Fran was a lesbian. Throughout their shift, he peppered her with a constant stream of sexually charged statements and commentary—including, “I don’t normally like to work with women; but, you know, we like the same thing, so I think we’re going to get along.”
That same day, while the two were dispatched on a run to Rhode Island Hospital, Tony approached a group of firefighters that included Fran and loudly called her his “lesbian lover” while making sexual gestures. Later that evening, after returning to the station, he walked into her personal quarters while she was changing her clothes and lingered until she made multiple demands that he leave the room.
Fran didn’t report Tony’s behavior, but Chief “Cameron” eventually heard informal reports about the hospital incident and called her directly to ask what had happened. Based on her explanation of the incident, the chief filed a formal complaint against Tony charging him with sexual harassment.
Further Abuse and Retaliation
Once word of Tony’s disciplinary proceeding spread among rank-and-file firefighters, Fran began to experience constant sexual harassment in the North Main Street station. Her fellow firefighters referred to her using gendered epithets such as “bitch,” “c*nt,” and “Frangina.” They also wrote insults on a common-area whiteboard in which they called her a “bitch” and a “lesbo,” and undermined her through acts of insubordination during emergency dispatches.
Most egregiously, during an emergency run responding to a suicide-attempt victim who had shot himself in the head, a firefighter refused to carry out Fran’s directives and then, after performing CPR on the victim, purposely removed his gloves—which had become encrusted with blood and pieces of brain matter—by snapping them off in such a way as to fling the bloody material onto Fran’s face, nose, hair, neck, eyes, ears, and mouth. As a result of this incident, Fran went out on disability leave for six months.
Following her return, Fran was berated by a male firefighter during a Christmas party in the Firefighter’s Union Hall. He screamed obscenities at her, spit as he yelled at her, and used his body to block her from leaving the hall. Two nearby senior officers didn’t attempt to intervene.
Later, after years of injured-on-duty (IOD) status resulting from the work-related incidents that occurred, Fran retired from the department on disability in late 2013 with a diagnosis of severe posttraumatic stress. At the time of her retirement, she had submitted approximately 40 different written statements complaining of harassment, discrimination, and retaliation.
‘Sex-Plus’ Sexual Harassment
Fran filed two claims in federal court under Title VII, asserting (1) that she was subjected to unlawful sexual harassment in the form of a hostile work environment and (2) that she suffered retaliatory action for having reported sex-based discrimination to her superiors.
After an 8-day trial, a jury sided with Fran on both claims and awarded her $806,000, including front-pay damages and attorneys’ fees. The city appealed to the 1st Circuit, asserting (among other things) that the jury’s decision should have been thrown out because she hadn’t presented sufficient evidence to support her claim that the harassment she experienced was based on her gender.
At trial, Fran advanced what’s called a “sex-plus” theory of discrimination, which means that she claimed she was unlawfully targeted on the basis of sex (i.e., being a woman) plus another particular characteristic—in her case, for being a lesbian. The city argued that although she may have presented evidence demonstrating discrimination based on her sexual orientation, she had failed to present sufficient evidence of discrimination based on her gender. It claimed that this distinction was crucial because the 1st Circuit had previously found that Title VII doesn’t prohibit harassment based solely on one’s sexual orientation.
The court rejected the city’s claim that Fran had only demonstrated sexual orientation-based discrimination (and not gender-based discrimination), by observing that she had presented “a plethora of evidence showing that the impetus for the discrimination she sustained was based in part on her being a female.” The court noted that she put forward evidence that she had been repeatedly called derogatory and gender-specific names such as “bitch,” “c*nt,” and “Frangina,” and that Title VII case law firmly establishes that the use of sexually degrading, gender-specific epithets constitutes harassment based on sex.
‘Tide Turning’ on Title VII Expansion
The court additionally observed, in a footnote, that “the tide may be turning” when it comes to whether Title VII affords protections against discrimination based on sexual orientation. It cited an April 2017 decision by the 7th Circuit that marked the first time a federal appeals court had held that Title VII bars sexual orientation discrimination.
Fran decision issued February 26, 2018, the 2nd Circuit ruled similarly in a case called Zarda v. Altitude Express, holding that “sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted,” which makes it “impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”
The 2nd Circuit’s decision increases the likelihood that this evolving legal issue will require clarification from the U.S. Supreme Court.
Takeaway
The decision from the 1st Circuit is one of several recent signals that Title VII’s protections may soon be applicable to sexual orientation-based discrimination in the workplace. It’s important to understand, however, that sexual orientation is already a protected category under Rhode Island antidiscrimination laws (as are gender identity and expression).
This case also serves as a reminder that employers and supervisors are expected by courts to proactively intervene when they are aware of the use of degrading, gender-specific epithets in the workplace. The city’s defense was undermined because many fire department higher-ups either directly witnessed or received complaints about the harassment Fran endured and yet did little or nothing to prevent and stop the harassment.
To avoid results similar to what happened in Franchina, you should train supervisory and management employees about their responsibility to ensure immediate and appropriate corrective action in addressing harassment in the workplace.
Joseph M. Cooper, of Whelan, Kinder & Siket LLP and contributor to Rhode Island Employment Law Letter, can be reached at jcooper@whelancorrente.com or 401-270-4500.