High court lets stand: 1964 rights act doesn?t cover gays

by Eric Resnick

Washington, D.C.--The Supreme Court has let stand a ruling that the 1964 Civil Rights Act does not protect against anti-gay harassment or discrimination.

The court, with two George W. Bush appointees including Chief Justice John Roberts, declined to hear a gay former police officer?s case against his former employer, the Fairfield Medical Center in Lancaster, southeast of Columbus.

Chris Vickers contends that the hospital, along with his supervisor at the time, two co-workers and a co-worker?s spouse, harassed him and put him in physical danger for 14 months because he did not meet their expectation of what a man should act like.

In its June 4 denial without comment, the high court allowed an October 2006 decision against Vickers by the Sixth Circuit Court of Appeals in Cincinnati to remain in force.

Appeals to the nation?s highest court are at the discretion of the justices. After they review the petition to hear the case and the respondent?s brief in opposition, four of the nine justices must vote in secret to consider it. Approximately 7,500 petitions are submitted each year, with the court granting only about 85 of them.

Denial is not necessarily agreement with the circuit court, but it means that its decision is law within the circuit.

In this case, gays and lesbians are not protected in the Sixth Circuit, which includes Ohio, Michigan, Kentucky and Tennessee, but enjoy some limited protection from rulings in the Ninth Circuit which covers the west coast states.

Ironically, almost three years to the day earlier, the Sixth Circuit delivered the landmark Smith v. Salem decision that extended protection from discrimination by sex-stereotyping to transsexuals under the 1964 act.

Salem firefighter Jimmie Lee Smith?s attorney in that case was Randi Barnabee of Bedford, who is transgender.

Barnabee also represents Vickers, and attempted to use the same line of case law the court accepted in Smith and later affirmed in Barnes v. Cincinnati, which involved a transsexual Cincinnati police officer.

Smith follows the 1989 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 is prohibited under Title VII of the 1964 Civil Rights Act.

But in Vickers? case last fall, the Sixth Circuit, in a divided decision with a strong dissent, excluded protecting gays and lesbians saying ?the harassment of which Vickers complains is more properly viewed as harassment based on Vickers? perceived homosexuality, rather than based on gender non-conformity.?

?Ultimately, recognition of Vickers? claim would have the effect of de facto amending Title VII to encompass sexual orientation as a prohibited basis for discrimination,? wrote Judge Julia Smith Gibbons, a George W. Bush appointee.

?In all likelihood,? she continued, ?any discrimination based on sexual orientation would be actionable under a sex stereotyping theory if this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.?

Opposing Vickers? petition to the high court, the hospital?s attorney, William Case of the Cleveland firm Thompson Hine, argued that making discrimination based on sexual orientation illegal would ?unduly burden employers and the courts.?

Sixth Circuit senior judge Eugene E. Siler, Jr., a George H.W. Bush appointee, joined Gibbons added that Vickers had no claim based on sex stereotyping because he is male like all but one of the defendants. ?Vickers had not alleged that the harassers were motivated by sexual desire for Vickers or by general hostility for men in the workplace, nor was any information presented regarding how females were treated in comparison at [the hospital],? he wrote.

Dissenting was District Judge David M. Lawson sitting by designation from the Eastern District of Michigan. He?s a Bill Clinton nominee.

?As in Smith,? wrote Lawson, ?I believe the plaintiff in this case has ?alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind defendants? actions.?

In petitioning the high court in February, Vickers argued Lawson?s analysis of Price Waterhouse v. Hopkins.

Quoting Lawson, Vickers argued, ? ?most of the cases relied on by the majority were decided on summary judgment or after trial,? where the court had the benefit of evaluating the allegations in light of the evidence developed in discovery or during trial.?

Neither occurred in Vickers? case.

Vickers also cited three Ninth Circuit cases similar to his except that the court allowed Title VII claims to go forward. Those cases are Nichols v. Azteca Restaurant Enters, where a male waiter was abused for walking and carrying his tray ?like a woman? and was derided for not having sex with a female co-worker who was his friend.

In Jesperson v. Harrah?s Operating Co., the Ninth Circuit held that harassment was actionable because of the plaintiff?s sex, a point the Sixth Circuit disagreed with in Vickers.

In Rene v. MGM Grand Hotel, a gay plaintiff went forward with his sex stereotyping claim because he endured assaults ?of a sexual nature? when his co-workers forced him to look at gay pornography and gave him sexually oriented gifts.

Vickers had endured similar assaults and gifts from his coworkers at the hospital.

?These Ninth Circuit cases could not be more squarely at odds with the present case and creates a serious split on a central issue within the developing body of federal civil rights law,? argued Vickers in his Supreme Court petition.

?Worse, this decision virtually eviscerates this court?s ruling in Price Waterhouse by creating an exception that swallows the rule,? Vickers said. ?This decision gives those who would discriminate in employment decisions on the basis of sex stereotypes the ability to do so with impunity.?

?Under the Sixth Circuit?s ruling in this case such employers only need to claim their decisions were based on an individual?s perceived homosexuality and they completely avoid Title VII?s sex-based protections,? Vickers argued, adding that Price Waterhouse would have been decided differently under the legal structure proffered in his case ?if only the employer had been prescient enough to categorize Ann Hopkins? ?macho? behavior as evidence she was a lesbian.?

The hospital refuted Vickers, arguing that even if he ?were not required to allege disparate treatment, the only purported sex-stereotyping allegation [he] asserts is that he was harassed because the individual defendants believed he engages in sexual relations with men rather than women.?

Quoting Justice Antonin Scalia in Oncale v. Sundowner Offshore Services, the hospital said, ?Title VII should not be construed in such a way as to expand it ?into a general civility code? and that ?ordinary socializing in the workplace--such as male-on-male horseplay or intersexual flirtation? is not actionable conduct under Title VII.?

That text is routinely used to deny gays and lesbians protection. In Oncale, the court ruled that the 1964 act outlaws sexual harassment even if both parties are the same sex.

Continuing to quote Scalia, the hospital argued, ?Rather, the critical issue in every case ?is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.? ? The hospital argued that Title VII?s purpose was to protect women, and that other interpretations that do more than that with Price Waterhouse have ?lost sight? of the fact that the case was only an attempt ?to stop employers from using stereotypes to deprive women of equal opportunity.?

?Title VII does not protect against hostility towards homosexuals, just as it does not protect against hostility towards people who abhor bad language, are offended by adultery, or are cat lovers,? asserted the hospital.

For the time being in the Sixth Circuit, the Supreme Court left that to be the case.

For Vickers and the hospital, however, the matter is not over.

According to Barnabee, of Vickers? 26 claims against the hospital, only three were federal matters. The remaining claims can be filed in an Ohio court now that the federal litigation has concluded, which they intend to do.