Sex plus and the First Circuit

When you are a lesbian and co-workers call you the spectrum of nasty slurs for women generally and gay women, spit on you, shove you, and have the blood and brains of a suicide-attempt victim flung at you, among other things, is this discrimination because you are a woman, or because you are a gay women?  If you aren’t a lawyer, you might think this is splitting hairs.  Last Thursday, the First Circuit inched closer toward making it a less important distinction legally in this Circuit, in a case awarding $700,000 to the plaintiff.  Franchina v. City of Providence, No. 16-2401 (1st Cir. 2018).

If you want the details of how the plaintiff was harassed, I leave you to read Judge Thompson’s decision.  Suffice it to say, it was outrageous and disgusting – another in the sad litany of sexual harassment examples we are seeing with depressing frequency these days.

It’s currently an open question at the Supreme Court level whether Title VII covers sexual orientation.  The Seventh Circuit en banc recently found it does (From Ulane to Hively), while a 1999 First Circuit decision, Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999), stated that Title VII doesn’t proscribe harassment based solely on one’s sexual orientation.  The panel (Judge Thompson writing for Judges Torruella and Kayatta), did not revisit that determination because the plaintiff’s claim of discrimination based on sexual orientation in Franchina was dropped.

So the remaining legal issue on appeal was how a “sex plus” case is addressed – i.e. when the discrimination is due to sex “plus” another factor, here status as a lesbian.  The appellant employer argued such claims should be reviewed under a standard that would basically make it pretty darn difficult to win a harassment case if there was another factor, too.  The First Circuit rejected that approach, with Judge Thompson noting that under Title VII, sex discrimination is barred when it is “a” motivating factor, not necessarily “the” motivating factor – the plaintiff need only show that the discrimination was “at least in part” because of gender.  Hence, for example, to prevail in a hostile environment suit, you need not necessarily prove that every woman was treated in the same disgusting manner.

Lined up on the plaintiffs side here as amici were the ACLU, Lambda Legal Defense, the National Center for Lesbian Rights, and GLBTQ Legal Advocates & Defenders (GLAD), the last of these which we’ve been partnering with to defend LGBTQ rights for a decade.

Here’s a link to GLAD’s press release on the case:  U.S. First Circuit Court of Appeals Recognizes Lesbian Firefighter’s Sex Discrimination Claim Under Title VII of the Civil Rights Act.