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GAY PEOPLE'S CHRONICLE August 4, 2006

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JOSH KILMER-PURCELL

signing

I am not myself these days.

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am net myself

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R.S.

HILLARY CARLIP

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DANIELLE TRUSSONI

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FALLING THROUGH THE EARTH FALLING

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MARIA DAHVANA HEADLEY signing

Queen of the Oddballs THE YEAR OF YES

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Maria Dahvana Headley

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FOR THE BOOK

Civil rights

Continued from page 1

Citing a Second Circuit decision, Gibbons wrote, "Like other courts, we have therefore recognized that a gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII."

Gibbons stated that in order to make this case, Vickers would have had to prove that as a man, he was exposed to "disadvantageous terms or conditions of employment" that women employed by the hospital were not exposed to.

"Nothing in Vickers' complaint indicates that his harassers acted out of sexual desire," wrote Gibbons in support of her theory that Vickers suffered no sex harass-

ment.

"Similarly, the complaint does not support an inference that there was general hostility toward men in the workplace," Gibbons said. "Finally, Vickers included no information regarding how women were treated in comparison to men at Fairfield Medical Center. In fact, [defendants] maintain that Vickers worked in an all-male workforce, an assertion that Vickers has apparently not disputed."

In his dissent, Lawson contends that Vickers had a valid Title VII claim that should not have been dismissed and refutes, point by point, each of the majority's claims otherwise.

"I believe that such a reading of the complaint in this case is too narrow and imposes an obligation on the plaintiff that is more exacting at this stage of the proceedings than is required by the Federal Rules of Civil Procedure," wrote Lawson.

Lawson also took issue with Gibbons' methodology.

"Most of the cases relied on by the majority were decided on summary judgment or after trial," wrote Lawson."

"The plaintiff has pleaded facts from

which a fact finder could infer that sex (and not simply homosexuality) played a role in the employment decision and contributed to the hostility of the work environment," wrote Lawson, "drawing the line should not occur at the pleading stage of the lawsuit."

Lawson examined several of Vickers' allegations, including defendants rubbing sanitary napkins in his face, defendants saying his "plumbing is hooked up wrong" and that he "has titties" and calling him their "favorite bitch."

'A gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII."

Lawson wrote, "These allegations, in my view, provide a basis for the inference that the plaintiff was perceived as effeminate and therefore unworthy to be considered "a real officer."

"The permissible conclusion that emerges is that [Vickers] was not tolerated— and the defendants made the workplace environment hostile-because the job required only 'manly men,' not woman-like ones or women themselves."

"Therefore," Lawson opined, according to the framework of the Smith case, Vickers "has sufficiently pleaded claims of sexstereotyping and gender discrimination."

Barnabee believes that since Smith was upheld en banc, and the number of judges who were part of the Smith and Barnes decisions represents a sizeable percentage of the entire court, that this decision has a better than average chance of being reversed.

If it is, it will go back to Frost's court for trial.

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Archwood Gospel Choir Afi-Odelia Scruggs, Director

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