Michael P. Maslanka
Michael P. Maslanka (Danny Hurley)

It’s pop quiz time ! (A perk of professorship.) Is sexual orientation a protected classification under Title VII of the Civil Rights Act of 1964? The answer was once a “no.” But there were two November surprises that will likely start to change the answer to “yes.”

The first is a decision from a federal district court in Pennsylvania denying a Rule 12(b)(6) motion to dismiss a lawsuit asserting that sexual orientation discrimination is sex discrimination under Title VII. That case is EEOC v. Scott Medical Health Center. (E. D. Penn.)

The second case is major. On Nov. 30, the Seventh Circuit heard an en banc oral argument on whether sexual orientation discrimination is sex discrimination. That case is Hively v. Ivy Tech. Stay tuned for what I think will be big news.

Let’s talk EEOC v. Scott Medical Center. Robert McClendon is gay. He has a same-sex partner. Allegedly McClendon’s boss called him a “fag,” “faggot” and “queer,” and told him that gay men do not make good employees. He also made highly offensive comments on the sex practices of gay men. McClendon sued. How did the EEOC convince the judge not to toss out its lawsuit? One word: precedents. (A joy of teaching is explaining how the law organically evolves.)

Let’s start in 1989. SCOTUS confronts this question: Does a female associate denied partnership in an accounting firm state a Title VII claim because the denial allegedly resulted from her acting “too macho”? In short, she was denied a position because she did not conform to gender norms. SCOTUS answered “yes” and the theory of “sex stereotyping” was created. Don’t act like a “man” or a “woman” (think “Leave It To Beaver,”) suffer an adverse employment action and voila, Title VII violation. (In 2013, our own Fifth Circuit, albeit it sharply divided, embraced the theory.)

The year 1999 rolls around and SCOTUS is asked this question: Is same-sex harassment prohibited by Title VII? Surely, or so the argument went, Congress way back in 1964 never intended Title VII to apply to same-sex harassment. But in very prophetic words SCOTUS said this: “Statutory prohibitions often go beyond the principal evil (addressed) to cover reasonably comparable evils, and it is ultimately the provisions of our law rather than the provisional concerns of our legislators by which we are governed.” Onacle v. Sundowner. Fun Fact Quiz: Who wrote these words? If you answered Former Justice Antonin Scalia, you’re a winner!

And the third leg to this legal stool is the argument made on behalf of a transgender person. He was offered a job at the Library of Congress when he was “David” but the offer got yanked when the Library learned he was going to become a “Diane.” The trial court reasoned that this action violated Title VII. How? Well, the court said that if a Christian converted to being a Buddhist and got fired for doing so he would be discriminated against because of his religion. No difference if an adverse employment action is taken because an applicant (or employee) changes from being a man to being a woman or the reverse. The adverse action is because of sex.

How did these cases coalesce into the court’s denial of the motion? McClendon was unlawfully stereotyped because he did not conform to his harasser’s conception of how a man should act. The alleged harasser targeted him for his harassment because of his sexual relationship with a man which necessarily means that the harasser took McClendon’s sex into account. And, finally, had McClendon not been a man, he would not have been subject to harassment. Thus, no harassment if he had been a woman.

Teaching employment law is part of my law school portfolio. I teach the scaffolding of the law to my students: burdens of proof, administrative exhaustion, the types of retaliation and much more. But I also teach them that the laws are designed for only one purpose: to treat people as individual who succeed based on their grit, their merits and their resourcefulness. Nothing else. A la Star Trek, this is the “Prime Directive” of our laws, not the trappings that surround them. The PD is now paying a visit to LGBT issues. Beam us up, Scotty!

It’s pop quiz time ! (A perk of professorship.) Is sexual orientation a protected classification under Title VII of the Civil Rights Act of 1964? The answer was once a “no.” But there were two November surprises that will likely start to change the answer to “yes.”

The first is a decision from a federal district court in Pennsylvania denying a Rule 12(b)(6) motion to dismiss a lawsuit asserting that sexual orientation discrimination is sex discrimination under Title VII. That case is EEOC v. Scott Medical Health Center. (E. D. Penn.)

The second case is major. On Nov. 30, the Seventh Circuit heard an en banc oral argument on whether sexual orientation discrimination is sex discrimination. That case is Hively v. Ivy Tech. Stay tuned for what I think will be big news.

Let’s talk EEOC v. Scott Medical Center. Robert McClendon is gay. He has a same-sex partner. Allegedly McClendon’s boss called him a “fag,” “faggot” and “queer,” and told him that gay men do not make good employees. He also made highly offensive comments on the sex practices of gay men. McClendon sued. How did the EEOC convince the judge not to toss out its lawsuit? One word: precedents. (A joy of teaching is explaining how the law organically evolves.)

Let’s start in 1989. SCOTUS confronts this question: Does a female associate denied partnership in an accounting firm state a Title VII claim because the denial allegedly resulted from her acting “too macho”? In short, she was denied a position because she did not conform to gender norms. SCOTUS answered “yes” and the theory of “sex stereotyping” was created. Don’t act like a “man” or a “woman” (think “Leave It To Beaver,”) suffer an adverse employment action and voila, Title VII violation. (In 2013, our own Fifth Circuit, albeit it sharply divided, embraced the theory.)

The year 1999 rolls around and SCOTUS is asked this question: Is same-sex harassment prohibited by Title VII? Surely, or so the argument went, Congress way back in 1964 never intended Title VII to apply to same-sex harassment. But in very prophetic words SCOTUS said this: “Statutory prohibitions often go beyond the principal evil (addressed) to cover reasonably comparable evils, and it is ultimately the provisions of our law rather than the provisional concerns of our legislators by which we are governed.” Onacle v. Sundowner. Fun Fact Quiz: Who wrote these words? If you answered Former Justice Antonin Scalia , you’re a winner!

And the third leg to this legal stool is the argument made on behalf of a transgender person. He was offered a job at the Library of Congress when he was “David” but the offer got yanked when the Library learned he was going to become a “Diane.” The trial court reasoned that this action violated Title VII. How? Well, the court said that if a Christian converted to being a Buddhist and got fired for doing so he would be discriminated against because of his religion. No difference if an adverse employment action is taken because an applicant (or employee) changes from being a man to being a woman or the reverse. The adverse action is because of sex.

How did these cases coalesce into the court’s denial of the motion? McClendon was unlawfully stereotyped because he did not conform to his harasser’s conception of how a man should act. The alleged harasser targeted him for his harassment because of his sexual relationship with a man which necessarily means that the harasser took McClendon’s sex into account. And, finally, had McClendon not been a man, he would not have been subject to harassment. Thus, no harassment if he had been a woman.

Teaching employment law is part of my law school portfolio. I teach the scaffolding of the law to my students: burdens of proof, administrative exhaustion, the types of retaliation and much more. But I also teach them that the laws are designed for only one purpose: to treat people as individual who succeed based on their grit, their merits and their resourcefulness. Nothing else. A la Star Trek, this is the “Prime Directive” of our laws, not the trappings that surround them. The PD is now paying a visit to LGBT issues. Beam us up, Scotty!