Discrimination Because Employee "Perceived as" Gay Is Not Actionable Under Title VII
 
March 1, 2000
 

A former technician assistant in a county sheriff's department who alleged he was sexually harassed and forced from his job because he was perceived as "being or behaving like a homosexual or of not behaving in the 'required manly' way," has no claim under Title VII, the Court of Appeals for the Eight Circuit has ruled. Klein v. McGowan (8th Cir. Dec. 20, 1999).

In Klein, the plaintiff alleged that he was harassed by supervisors and co-workers throughout the course of his 16-year tenure with the sheriff's office, including repeatedly being called a "homo." He further alleged that he was subject to discrimination in promotion and assignment of duties and that he "would not have been treated the same way if he had been a woman." The district court granted the employer's motion for summary judgment, holding that, even if his timely allegations were sufficiently severe or pervasive to be actionable under Title VII, the plaintiff could not establish that the alleged harassment was based on his sex.

Relying on the Supreme Court's recent opinion in Oncale v. Sundowner Offshore Servs., Inc. (1998), in which the Supreme Court held that same-sex harassment is actionable under Title VII, the district court explained that, when determining whether alleged harassment is based on the victim's sex, the court must examine "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Noting that the plaintiff's workplace was almost entirely male, and that there was no allegation that anyone other than the plaintiff was subjected to the alleged harassing conduct, the district court concluded the plaintiff could not meet the burden of showing that one sex was treated differently than the other sex.

The court rejected the plaintiff's argument that the harassment was based on sex because it was based on "the sexual aspect of plaintiff's personality." Recognizing that, in essence, the plaintiff was asserting that he was harassed because he was perceived as being a homosexual, the court stated "it is well settled that Title VII does not recognize a cause of action for discrimination based on sexual orientation." The court further explained that Title VII does not prohibit harassment of a male because of effeminate behavior, the perception that he is gay, or because of animus toward the sexual aspect of one's personality.

In affirming the summary judgment, the Eighth Circuit Court of Appeals agreed that the incidents occurring within the limitations period did not amount to severe or pervasive conduct and that the plaintiff did not establish that they were "tied to sex."

The Klein decision reaffirms that Title VII does not prohibit discrimination or harassment based upon an employee's sexual orientation. Employers need to be aware, however, that they may be subject to state or local laws that prohibit discrimination on the basis of sexual orientation. For example, the District of Columbia Human Rights Act, the Massachusetts Fair Employment Practices Act, the Rhode Island Fair Employment Practices Act, and the California Fair Employment and Housing Act include sexual orientation as an unlawful basis for discrimination in employment. And the New York City Human Rights Law proscribes discrimination based on one's "actual or perceived ...sexual orientation."

For more information please call Robert J. Crohan at 1-888-688-8500.