As we’ve discussed in previous articles, federal courts across the country are struggling with whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on someone’s sexual orientation. An East Tennessee federal district court recently concluded that it doesn’t. In the case before the court, a woman claimed she was fired in retaliation for complaining about workplace harassment she believes was attributable to the fact that she’s a lesbian.
Carla Underwood worked as a security officer for Dynamic Security, Inc., and was assigned to Pellissippi State Community College. Initially, Underwood, who is a lesbian, was supervised by Angela Garrett, who she believes is also a lesbian or bisexual. According to Underwood, Garrett flirted with her, groped her breast, and punched and kicked her because of her sexual orientation. After she complained, Dynamic reassigned her to another Pellissippi State campus.
At the new campus, Underwood was supervised by a man named J.T. Gibson. She claimed that Gibson also harassed her by inappropriately touching her and inviting her to his home to perform sexual acts. After she complained, Dynamic fired her.
Underwood sued, claiming she was subjected to a sexually hostile work environment—but only by Gibson. She also claimed she was fired in retaliation for her complaints about both Garrett and Gibson. She alleged the harassment was based on her status as both a woman and a lesbian. At the outset of the lawsuit, Dynamic asked the court to dismiss her retaliation claims to the extent that they stemmed from her complaints about harassment based on her sexual orientation.
The district court granted Dynamic’s motion and carved out the portion of Underwood’s lawsuit in which she alleges she was discriminated against because of her sexual orientation. The court acknowledged that other courts have recently concluded that Title VII prohibits discrimination based on sexual orientation. However, it was unwilling to join them, stating, “Absent contrary guidance from the [U.S. 6th Circuit Court of Appeals (whose rulings apply to Tennessee employers)] or the Supreme Court, a claim of discrimination based on sexual orientation does not state a claim for relief under Title VII and this Court is obligated to follow that precedent.”
The court dismissed Underwood’s Title VII claims involving the adverse actions based on her sexual orientation. However, all is not lost for Underwood—she is still able to pursue her claims related to her status as a woman. Underwood v. Dynamic Security, Inc., No. 3:18-cv-017, 2018 WL 3029257 (E.D. Tenn., June 18, 2018).
In its March 2018 ruling in EEOC v. R.G & G.R. Funeral Homes, Inc., the 6th Circuit found that a transgender employee was protected under Title VII’s prohibition on discrimination against an employee because she fails to conform to sex stereotypes. The district court didn’t interpret the 6th Circuit’s ruling to suggest that Title VII also precludes discrimination based on sexual orientation. I suspect that other courts would disagree.
I also suspect that the U.S. Supreme Court will resolve this debate within the next couple of years and the newest justice will be the decisive vote. In the meantime, the more conservative approach is to assume that Title VII protects homosexual employees. Tennessee employers that choose not to go that route may present a good defense based on the ruling in Underwood and other cases.
David Johnson is a partner in Butler Snow’s labor and employment practice group in the Nashville office. He may be reached at email@example.com.