A federal judge in the Eastern District of Pennsylvania dismissed a lawsuit last week where a former employee alleged that she was fired because she was a lesbian, in violation of Title VII of the Civil Rights Act. The judge dismissed the case by upholding Third Circuit precedent (to which Pennsylvania federal courts are bound) from 2001 holding that Title VII does not protect employees because of their sexual orientation. The case is Doe v. Parx Casino, Case No. 2:18-cv-05289
In her complaint, the former employee who was a table dealer at Parx Casino, alleged numerous instances of derogatory and disparaging comments directed at her, as well as harassing treatment, all based on her being a lesbian. After raising her complaints to management, she was ultimately fired with the reason given that a customer had a “negative interaction” with her that he complained about. She then sued under Title VII alleging gender discrimination based on her sexual orientation.
Title VII Law
For background on the federal employment law at issue here, Title VII of the Civil Rights Act prohibits discrimination in the workplace against an employee because of several “protected categories” like race, religion, and, importantly here, gender. Relying on recent cases from other Circuit Courts of Appeals, like the Second and Seventh, the employee argued that sexual orientation should be covered under the law as part of unlawful stereotyping based on gender. The casino countered with the familiar argument that sexual orientation is separate and apart from gender and is not expressly included in the Title VII law, which dates back to 1964.
The Court’s Reasoning
In siding with the casino, the court (with clear reluctance) expressed that it is bound to follow Third Circuit precedent from a 2001 case titled Bibby v. Philadelphia Coca Cola Bottling Co., where the court of appeals explicitly stated that Title VII “does not prohibit discrimination based on sexual orientation” because “Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation.”
After reciting this precedent, the court engaged in a lengthy discussion of how sexual orientation in the workplace has evolved under the case law since 2001, in what can only be seen as an attempt to urge the Third Circuit or Supreme Court to change its position on this issue. The court highlighted the Supreme Court’s 2015 landmark decision in Obergefell that recognized same-sex marriage as a constitutional right, as well as two recent decisions from the Seventh Circuit Court of Appeals, in which they held that Title VII does in fact prohibit discrimination based on sexual orientation as a necessary subset of gender discrimination.
Although the judge in this case correctly applied binding case law, he is not alone in his foreshadowing of the direction in which he would like to see the case law go. Just last month, another federal judge in the Eastern District of Pennsylvania dismissed a similar claim, lamenting that “discrimination based on sexual orientation is offensive, but case law in this circuit is clear.” The judge in Parx Casino concluded that despite his dismissal of the case, he recognizes that “the nature of injustice is that we may not always see it in our own times.”
So what does this decision mean for employers in Pennsylvania and other states covered by the Third Circuit (New Jersey, Delaware, and the Virgin Islands)? It does not change the existing law of the circuit, and in fact affirms that district court judges are bound to continue to uphold the Third Circuit precedent that sexual orientation is not covered until Title VII. Employers, however, should be aware that local laws, such as Philadelphia’s Fair Practices Ordinance, does include sexual orientation as a protected class.
What this case does show is that terminations based on sexual orientation will continue to result in costly litigation and that there is mounting pressure on both the Third Circuit and Supreme Court to take up new cases on this issue on appeal. With several Title VII cases based on sexual orientation pending for potential consideration by the Supreme Court this term, many employment law attorneys will be watching to see whether the Supreme Court decides to hear those cases, and if so, how it resolves them.
After this post was written, the Supreme Court decided that it would in fact take up the issue of whether Title VII covers LGBT bias. The high court is set to hear oral arguments on the topic in the term beginning in the fall of 2019, with a decision likely by June 2020.