Jottings By An Employer's Lawyer

Wednesday, January 12, 2011

Is Retaliation for Complaining About Sexual Orientation Discrimination a Violation of Title VII?

The headline in today's Daily Labor Report caught my attention, Court Revives Fired Gay Employee's Retaliation, Harassment Claims ($). I thought maybe it was another another step down the road for protection against sexual orientation discrimination, but still within the limits of Title VII.
But when I looked at the decision, Dawson v. Entek International (9th Cir. 1.10.11) [pdf] what I found was even more confusing.

The Court had in fact discussed the line of cases I was thinking about -- where a number of courts have found Title VII protection for sexual orientation based on gender stereotyping. However, the Court specifically found that there was no evidence of gender stereotyping in this case, and so dismissed what it called claims for sexual discrimination under both Title VII and Oregon state discrimination law. 

The Court held that it was error to dismiss Dawson's sexual orientation discrimination claim under Oregon state law. (There was a question about the effective date of the statute versus the conduct. The 9th Circuit side stepped that question by noting that even before the effective date Oregon had recognized a common law claim for sexual orientation discrimination.)

The part that obviously prompted the DLR headline, and caught my attention after reading the opinion, was the Court's holding that the trial court erred in dismissing his retaliation claim under both Title VII and Oregon state law.  There was no question Dawson had complained, but there was also no question that he had complained only about taunts based on his homosexuality, i.e. his sexual orientation, not anything based on gender stereotyping. 

I think the problem in the court's analysis is here:
Title VII prohibits an employer from discriminating against an employee for opposing an unlawful employment practice, such as filing a complaint alleging sexual orientation harassment and hostile work environment.
After making clear that sexual orientation is not protected under Title VII, the Court seems to have made a logical error in calling sexual orientation discrimination an unlawful employment practice.
In this case, depending on the remedies under Oregon state law, it may not matter, but as the decision is currently written it would certainly impact Title VII retaliation law.

It would be quite a step forward, not to mention ironic, if you could be fired for your sexual orientation, but could not be fired for complaining that you were being discriminated against because of your sexual orientation.

Surely we are not that much in the Alice in Wonderland world, at least not yet.


Can it not be argued that under the law persons who file or allege meritless charges or complaints are protected? To hold otherwise would serve as deterrent to individuals seeking the protection of the Act.
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