United States: Sex + Discrimination = Liability, Says First Circuit

In Franchina v. City of Providence, 2018 WL 550511, 2018 U.S. App. LEXIS 1919 (1st Cir., Jan. 25, 2018), the First Circuit offered no sympathy to the City in its appeal of a jury award that found the City's fire department liable for tormenting a former lieutenant on the basis of her sex. The court's sentiments were readily apparent from the outset of its opinion, which admittedly "decline[d] to put out flames of the Department's own making."

Harassment at the Firehouse

In the underlying trial, the plaintiff testified at length about the workplace harassment she experienced, which began after a superior filed a complaint on her behalf about another firefighter's sexual misconduct toward her. Following the harassing firefighter's discipline, the plaintiff was exposed to escalating verbal and physical mistreatment. The plaintiff's colleagues referred to her in derogatory terms, physically assaulted her, gave her poisoned meals, refused to cooperate in providing emergency care at the peril of civilian lives, and once even flung the blood and brain matter of a suicide victim into her face. Despite awareness of these incidents, the Department failed to intervene. On these facts, the jury awarded the plaintiff front pay in the amount of $545,000 and a separate figure for emotional damages.

The City's Sex-Plus Theory of Defense

The City appealed the jury verdict. Although the City disputed the timeliness of the plaintiff's action and the court's admission of certain evidence, the linchpin of its challenge was that the plaintiff had failed to present sufficient evidence under a "sex-plus" theory of discrimination required by Title VII. By way of background, sex-plus claims are a variety of gender discrimination claims where an employer classifies employees on the basis of sex and another characteristic, such as age, parenthood, marital status, or race. In these sex-plus cases, the plaintiff is pressed to identify a corresponding subclass of the opposite gender and show that the corresponding class was not subject to similar harassment or discrimination (i.e., the former lieutenant needed to present evidence of a corresponding class of gay male firefighters who did not experience discrimination).

The Court's Rejection of a Stricter Standard for Sex-Plus Claims

The appellate court found the City's interpretation contrary to Title VII's language and purpose. The court reasoned that the City's proposed standard, in practice, imposes a more stringent standard for sex-plus claims than for direct claims of sex discrimination. It explained that to require a comparator would essentially impose the burden of demonstrating "but-for" causation upon a plaintiff: that is, all else being equal (the "plus" factors being the same), the discrimination would not have occurred but for the plaintiff's sex. However, Title VII's text, the court pointed out, only requires that sex be "a motivating factor" and not "the motivating factor." Adopting the City's interpretation, the court explained, would allow employers to immunize themselves from liability for discrimination by not employing a subclass of the opposite gender.

The court also applied this analysis to dismiss the City's related argument that the plaintiff was targeted not mainly due to her sex, but because of her sexual orientation, which is not actionable under the First Circuit's jurisprudence on Title VII. Notwithstanding its disagreement with the City's interpretation of circuit precedent, the court emphasized that the inquiry in a Title VII action is merely "whether the employer took an adverse employment action at least in part because of an employee's sex." The court found that the plaintiff presented ample evidence of such discrimination, pointing to the repeated and hostile use of gender-specific expletives as an example.

The First Circuit's Decision Adds to an Increasingly Adopted View

Franchina is the first federal appellate decision to address a sex-plus discrimination claim with sexual orientation as the "plus" factor. It joins other decisions from the Second, Fifth, Sixth, Seventh, and Ninth Circuits that also recognized actionable claims where the evidence indicated that the differential treatment was based in part on sex or another protected characteristic. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d Cir. 2010) (that a subset of ADEA-protected employees did not experience age discrimination was no bar to plaintiff's claim of such discrimination; same goes for plaintiff's sex discrimination claim); Jefferies v. Harris Cty. Cmty. Action Ass'n, 615 F.2d 1025 (5th Cir. 1980) (employer could not single out black women for discriminatory treatment; contrary result would undermine Title VII); Shazor v. Prof'l Transit Mgmt., Ltd, 744 F.3d 948 (6th 2014) (black woman's sex and race discrimination claims could not be untangled, as black women "are subjected to unique stereotypes that neither African American men nor white women must endure"); Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir. 1999) (Title VII prohibits no-marriage rule applicable only to women stewardesses; Title VII would be diluted if discrimination were permitted to affect only a portion of the protected class); Lam v. Univ. of Hawai'i, 40 F.3d 1551 (9th Cir. 1994) (trial court's assessment of plaintiff Asian woman's claim by searching for racism or sexism "alone" distorts or ignores the particular experiences of people who bear both characteristics). But see Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428 (6th Cir. 2004) (discrimination based on breast-feeding does not present a viable Title VII claim).

The Tenth Circuit stands alone as the only federal Court of Appeals to have upheld a sex-plus discrimination defense. Coleman v. B-G Maint. Mgmt. of Colorado, Inc., 108 F.3d 1199, 1204 (10th Cir. 1997) ("[G]ender-plus plaintiffs can never be successful if there is no corresponding subclass of members of the opposite gender. Such plaintiffs cannot make the requisite showing that they were treated differently from similarly situated members of the opposite gender.").

Takeaways

Franchina teaches two important and related lessons. First, it informs us that it will be challenging to separate the line between sex and sexual orientation in the context of discrimination. Second, it means that employers should craft their policies and approach to sex and sexual orientation in the same manner even if they operate in circuits, states, and localities that do not treat sexual orientation as a protected status under Title VII or other applicable law.

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