June 17, 2005

Sixth Circuit to decide if 1964 rights act covers anti-gay harassment

by Eric Resnick

Cincinnati--The case of a gay cop harassed into quitting his job could extend the 1964 Civil Rights Act to cover some cases of anti-gay harassment.

A three judge panel of the Sixth Circuit Court of Appeals heard the appeal of the former Lancaster, Ohio officer on June 8.

If the panel, which is one step below the U.S. Supreme Court, agrees with him, discrimination by sex-stereotyping will be prohibited under Title VII of the 1964 act for gays and lesbians in the circuit, which includes Ohio, Michigan, Kentucky and Tennessee.

The same court ruled last year in the landmark Smith v. Salem case that Title VII extended to transsexuals. That case involved a pre-operative transsexual firefighter, Jimmie Lee Smith, who was harassed by the city of Salem for not acting like a typical male.

The court affirmed its Smith decision in December with the similar Barnes v. Cincinnati decision in favor of a post-operative transsexual police officer demoted by the city of Cincinnati for not showing enough masculine characteristics on the job.

In the current case, Chris Vickers, a former police officer with the Fairfield Medical Center in Lancaster, was harassed by his chief and three co-workers, all of whom are co-defendants, because they perceived him to be gay, and as such did not act masculine enough to suit them.

All the cases are based on the 1989 U.S. Supreme Court decision Price Waterhouse v. Hopkins, in which the high court said that even though it was not specifically designated by Congress, sex-stereotyping was prohibited under Title VII of the 1964 act.

In that case, the men controlling the accounting firm Price Waterhouse refused to promote Ann Hopkins because she did not act feminine enough.

Vickers? attorney, Randi A. Barnabee of Bedford, who also represented Smith, argued in both cases that the court?s recognition that sex stereotyping can also occur when the victim is transsexual or gay is a natural progression of the Price Waterhouse decision.

In Vickers? case, she also argued that the harassment and discrimination prohibited by Title VII can occur between people of the same sex, which the Supreme Court recognized in its 1998 Oncale v. Sundowner decision. That case concerned a heterosexual man living and working on an offshore oil platform.

The harassment of Vickers included fellow officer Kory Dixon handcuffing him, then pretending to have anal sex with him. Chief Steve Anderson photographed this and later circulated the photo.

Another officer, John Mueller, tormented Vickers with tampons and sanitary napkins, rubbing them in his face. The officers impressed the word ?fag? on his multi-part report forms and interfered with personal phone calls when Vickers befriended a male medic.

According to Vickers? complaint, the harassment went on for 14 months before he quit in 2002.

U.S. District Judge Gregory L. Frost of southern Ohio district dismissed the case last year, citing a 1992 Sixth Circuit decision, Dillon v. Frank, which held that sex-stereotype-based discrimination is not actionable when the victim is homosexual--whether real or perceived.

Vickers appealed that dismissal to the Sixth Circuit.

During her 15 minutes of oral argument to Judge Eugene E. Siler, Jr., presiding Judge Julia Smith Gibbons, and District Judge David Lawson of the Eastern Michigan District, sitting by designation, Barnabee said, ?If this case would have been four weeks later, we wouldn?t be here?--a reference to the same court?s Smith decision.

The Smith decision, which came a month after Frost dismissed Vickers? case, also contains language repudiating Dillon.

Barnabee said that the sex-stereotyping in this case is no different from that in Smith and later, Barnes, and the court should find as it did in those cases.

Siler asked, ?If we accept that, are we including a claim of sexual orientation under Title VII??

Barnabee replied, ?Congress would need to do that,? but pointed out that Congress didn?t include transsexuals either.

?It seems to me that the key in Smith and the other case is how one characterizes the allegations,? said Gibbons. ?The specific trigger in Smith was that he was not appearing masculine enough. What was the trigger here??

?Simply that he befriended another man, a homosexual,? said Barnabee, ?and the two took a vacation together.?

?The line gets close,? said Gibbons.

Siler said, ?It was easy in Smith because of the sex change.?

?In this case, it is a matter of a man doing something ?real men? don?t do,? said Barnabee.

?In effect, aren?t we bringing sexual orientaion under Title VII?? aske Siler.

?We?re focusing on behavior,? replied Barnabee. ?[Vickers?] conduct has to be protected, otherwise, it gives defendants a green light to discriminate any time they want to.?

The hospital was represented by attorney William Case of the Thompson Hine law firm. He was careful not to admit his client was sex-stereotyping, but he referred to Barnabee, a transsexual, as ?he? twice during his presentation.

Case argued that Vickers cannot show same-sex harassment because the ?environment is all male.?

?There can be no stereotyping between men and men,? said Case, ?because there?s no hostility toward men shown in the workplace [in this case.]?

?How do you draw that from [Justice] Scalia in Oncale?? asked Lawson.

?Because men-on-men protection would result in sexual orientation being protected,? said Case. ?There?s no way around it. That would dismantle jurisprudence.?

A decision is expected within six months. If Vickers prevails, the case will be sent back to Frost?s court for a jury trial on the evidence. Vickers is asking for $10 million in damages.

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