Jottings By An Employer's Lawyer

Wednesday, July 19, 2006

Holding the Line on Gender Stereotyping

Is what a divided panel of the 6th Circuit tried to do today as it affirms a district court's dismissal on the pleadings of a complaint brought by an individual who argued that taunts and harassment based on his perceived homosexual status was actionable under the 6th Circuit's developing body of law prohibiting gender stereotyping. See my earlier post here. Vickers v. Fairfield Medical Center (6th Cir. 7/19/06) [pdf].

Playing out the end game of Vickers' proposed theory, the Court wrote:
Ultimately, recognition of Vickers’ claim would have the effect of de facto amending Title VII to encompass sexual orientation as a prohibited basis for discrimination. In all likelihood, any discrimination based on sexual orientation would be actionable under a sex stereotyping theory if this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.
In fact, the Court concluded that was the intent of the 71 page complaint.

The dissent was from a district judge sitting by designation, so it will be interesting to see if there are enough votes on the Court to give this case a broader hearing. My guess -- no.

Update: Having hit the publish button prematurely, I was remiss in not giving a hat tip to Howard Bashman at How Appealing for the first mention of the court's decision in Vickers and also two links to stories from the Gay People's Chronicle which have in depth coverage about the case and allegations, both when it was originally filed here (3rd story down) and when it was argued on appeal here. One fact which I learned from the 2nd article, the attorney who argued the case for Vickers, Randi A. Barnabee, also represented Jimmy Smith in the initial 6th Circuit case which first extended protection to transgendered individuals, and is transgendered herself.

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