Same-Sex Harassment Fails in the 6th Circuit

Here's a strange 2-1 ruling issued July 19 by the U.S. Court of Appeals, 6th Circuit, in Vickers v. Fairfield Medical Center, 2006 Westlaw 1999132.

Christopher Vickers was a private police officer working security at Fairfield Medical Center in Lancaster, Ohio.  It is not easy to tell from the decision for the court by Judge Julia Smith Gibbons and the dissent by District Judge David M. Lawson (sitting by designation) exactly what were the facts that triggered Vickers' workplace problems, but it had something to do either with him becoming very friendly with a gay doctor at the Medical Center OR with a gay patient who was accusing a doctor at the Center of improper conduct toward him.  Depends which opinion you read.  In either event, it seems that Vickers' closeness to a gay person raised suspicions about him with other security officers and his boss, and soon the streams of harassment began, both verbal and physical, name-calling, pranks, embarassing spectacles and the like.  When it appeared that the human resources people were trying to frame Vickers on some phoney charges, he quit the place and filed suit.  Since he is in Ohio, there is no state law banning sexual orientation discrimination, and although the opinion does not make it clear, it seems there was no local gay rights law either.

Vickers's sexual orientation is not specified in the opinions; he did not discuss his sexual orientation with anybody at the workplace, but the heart of the case is that association with a gay person led to "guilt by association" in the minds of his harassers and, as such people will do, they employed gender stereotypes that straight male homophobes attach to suspected gay men, so the abuse impugned his masculinity, and implied he was effeminate.  However, Vickers does not allege that he is effeminate or used effeminate mannerisms in the workplace.

Vickers sought to rely on the line of federal Title VII cases, starting with Price Waterhouse v. Hopkins, in which the courts have accepted the idea that discrimination (including harassment) due to gender stereotype non-conforming behavior by the victim may be actionable as sex discrimination under Title VII.  But although he submitted a detailed, 71 page complaint setting forth a significant number of incidents of harassment, many of them implicating the kinds of remarks mentioned above, a majority of the panel affirmed the decision by District Judge Gregory L. Frost (S.D. Ohio) to grant a motion to dismiss the case.

A motion to dismiss in a civil rights case is rarely granted, since it means that the judge has decided that if he/she believes all the factual allegations by the plaintiff, nonetheless they would not suffice to state a claim under the legal theories pled in the complaint. 

Judge Gibbons premised her ruling on a narrow interpretation of the gender stereotyping cases.  She said, in effect, that it was not enough for the harassment to be of a sexual nature, or to reflect stereotyped thinking by the harassers.  According to her, in order for a victim to state a claim under Title VII, the victim must allege that he actually presents himself or acts in a way that conflicts with gender stereotypes.  This is necessary, according to Judge Gibbons, to avoid letting Title VII be wrongly pressed into service as a gay rights statute, since Congress did not intend to ban sexual orientation discrimination when it enacted Title VII.

In dissent, Judge Lawson was very critical of the notion that Vickers' story was insufficient to get past a motion to dismiss.  Lawson found many of the incidents described by Vickers as potentially relevant to a sex discrimination claim in light of the developing case law in other circuits, as well as the recent 6th Circuit cases upholding Title VII sex discrimination claims by transgender plaintiffs.  And, Lawson pointed out, the standard to survive a motion to dismiss and have an opportunity to conduct discovery, is not very demanding.

Perhaps Vickers' lawyer, Randi A Barnabee of Bedford, Ohio, will be able to persuade the circuit to reconsider this en banc.  It is really out of step with other same-sex harassment decisions.  And it again show how important it is to get Congress to pass the Employment Non-Discrimination Act, which would add "sexual orientation" to the federally-forbidden grounds for employment discrimination and workplace harassment.