Diversity & Inclusion

KY Court: Atheism Is a Protected Class, but Sexual Orientation Isn’t

A Kentucky federal court recently allowed a former employee’s claim of harassment based on his atheism to proceed but rejected his claim of harassment based on his coworkers’ beliefs about his sexual orientation.

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Jeffrey Queen worked as a firefighter for the city of Bowling Green. Queen is an atheist—a fact he shared with his coworkers. He alleged that his colleagues referred to individuals with non-Christian beliefs as “pagan,” asked him if he had been “saved,” told him to “get right with Jesus,” and said atheists “deserved to burn.” He also claimed the fire chief once said, “I’ll be damned if I work with [atheists]” and he was “sure as hell glad none of those [expletives] work here.” Queen said he was forced to participate in a Bible study session and two coworkers threatened to “burn his house down” after they learned he is an atheist.

Queen also alleged he was harassed by coworkers who accused him of being homosexual, despite the fact that he is married to a woman with whom he has a child. He claimed he was teased and called derogatory names and he also overheard firefighters make general discriminatory and homophobic remarks.

Queen complained about the inappropriate conduct on multiple occasions, but his complaints were never investigated and he was treated worse after he complained. For example, he said he was tripped while he was walking through the fire station. He said the alleged harassment resulted in his decision to take leave under the Family and Medical Leave Act (FMLA) and eventually resign from his job. He then sued, asserting several claims, including hostile work environment based on his religion and gender.

Court’s Decision

First, the court denied the employer’s request for summary judgment (dismissal without a trial) on Queen’s claim of hostile work environment based on his religion. The following five elements are required to establish a hostile work environment claim: (1) the employee is a member of a protected class, (2) he was subjected to unwelcome harassment, (3) the harassment was based on his membership in the protected class, (4) the harassment was sufficiently severe or pervasive to affect a term, condition, or privilege of employment, and (5) the employer knew or should have known about the harassing conduct but failed to take corrective measures.

The court concluded that Queen is a member of a protected class because “although atheism is the absence of religious beliefs, it is still a protected class for the purposes of Title VII [of the Civil Rights Act of 1964].” The court also concluded that Queen satisfied the second and third elements when he testified that the harassment was unwelcome and his coworkers were aware of his atheism. Because the harassment involved threats to his life and he was tripped, the court concluded that he established sufficient severity for the claim to go to trial. Finally, his multiple complaints led the court to conclude the employer knew about the harassment. Finding that he established a prima facie case of hostile work environment based on his religion, the court denied summary judgment and allowed the claim to proceed to a jury trial.

The court then analyzed Queen’s hostile work environment claim based on his gender. Queen essentially argued that he was subjected to a hostile work environment because of his sex and his failure to conform to “gender norms,” pointing to his assertion that he was often ridiculed and accused of being gay. However, the court clarified that because the teasing wasn’t based on his gender, his failure to conform to male norms, or his sexual attraction to another male, it wasn’t protected under Title VII. Relying on existing 6th Circuit precedent, the court explained that “sexual orientation is not a prohibited basis for discriminatory acts under Title VII.” Jeffrey Queen v. City of Bowling Green, et al., Civil Action No. 1:16-cv-00131-JHM-HBB (W.D. Ky., July 20, 2018).

Bottom Line

Even though atheism is, by definition, the lack of religion, it’s protected under Title VII’s prohibition on discrimination based on religion. Sexual orientation, however, isn’t considered a protected class under Title VII in the 6th Circuit. Although courts have allowed claims involving harassment or discrimination based on a person’s failure to conform to gender stereotypes, the court found this case didn’t involve such allegations.

Despite the court’s decision, employers in Kentucky need to understand that even though “sexual orientation” and “gender identity” may not be explicitly protected under federal or state antidiscrimination laws, discrimination based on those characteristics is prohibited by local ordinance in most major cities in Kentucky, including Lexington and Louisville. In addition, unlike the 6th Circuit, the Equal Employment Opportunity Commission (EEOC) considers sexual orientation to be protected under Title VII and is aggressively pursuing sexual orientation discrimination claims on behalf of employees.

Tessa Castner is an attorney at Frost Brown Todd Attorneys.  If you have any questions about this case, please contact Castner at tcastner@fbtlaw.com.