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Game Change? Judge Rules on Discrimination Protection for Gays

IMG_0939A United States District Court Judge in the District of Columbia issued a recent opinion that could radically change the discrimination protections afforded to members of the LGBT community, but perhaps not in the way that you would expect.

In a complaint filed in the federal district court in D.C., Peter TerVeer alleged that he was targeted and harassed by his supervisor, a particularly religious man, after Mr. TerVeer’s supervisor discovered he is gay.  The supervisor allegedly harassed Mr. TerVeer in numerous ways, including:

  • Engaging in “religious lectures” in virtually every work-related conversation – to the point that it became clear Mr. TerVeer sought to impose his conservative religious beliefs on Mr. TerVeer.
  • Giving Mr. TerVeer much less specific directions for assignments without clear expectations.
  • Assigning Mr. TerVeer alone to a large project beyond his level of experience that would usually require a half-dozen employees over a year to manage and ordinarily would require a New Project Memorandum.
  • Holding a meeting for over an hour whose stated purpose was to educate Mr. TerVeer on Hell, the sins of being a homosexual, that homosexuality is wrong, and that Mr. TerVeer would be going to Hell.
  • Receiving annual reviews that did not accurately reflect Mr. TerVeer’s work.
  • Putting Mr. TerVeer under a “closer watch” and telling him not to question management after Mr. TerVeer complained about how he was being treated.

Mr. TerVeer alleged, in his complaint, that his employer violated Title VII by discriminating against him based on his gender, religion, and in retaliation for reporting his concerns.  To many, this doesn’t seem to make sense. Shouldn’t Mr. TerVeer just have sued his employer for discriminating against him because he’s gay? Unfortunately, being gay or otherwise a member of the LGBT community is not a protected class under Title VII or any other federal anti-discrimination legislation currently on the books here in the United States.

Instead, Mr. TerVeer got creative.

Mr. TerVeer alleged that Defendant subject him to discriminatory working conditions because, as a gay man, Mr. TerVeer did not fit the gender norms and stereotypes held by his supervisor.  In other words, if Mr. TerVeer were a woman, it would be fine in his supervisor’s mind for him to be attracted to and have relationships with men.  Because he is a man, the supervisor allegedly targeted him with the behaviors highlighted above.  Thus, Mr. TerVeer seems to be arguing, this is a case of gender discrimination.  Other successful gender discrimination cases in the past have been based on employers telling their female employees that they aren’t being feminine enough.  Here, Mr. TerVeer is making the similar argument that by being gay, he wasn’t being masculine enough for his supervisor.

In a thirty-four page opinion, Judge Colleen Kollar-Kotelly denied Mr. TerVeer’s employer’s motion to dismissed and ruled that Peter TerVeer’s gender and religious discrimination claims did fall within Title VII.  As mentioned by Advocate.com, this ruling builds on a 2012 ruling from the Equal Opportunity Employment Commission (“EEOC”) that Title VII’s protections extend beyond merely biological sex and include “protections sweep far broader than that, in part because the term ‘gender’ encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.”

As always, if you believe you have been discriminated against at work for any reason, please contact one of our attorneys for a free consultation.