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Despite a 1998 landmark Supreme Court decision making same sex discrimination in the workplace unlawful, the 7th U.S. Circuit Court of Appeals warns that homosexuals are not a “protected class” under Title VII of the Civil Rights Act and generally cannot sue their employer for discrimination based solely on their “sexual orientation.” Hamner v. St. Vincent Hospital and Health Care Center Inc., No. 99-3086. “There is a difference between one’s sex and one’s sexuality” under federal law, reminded Judge Daniel A. Manion in writing the Aug. 24 opinion for the unanimous three-judge panel. In enacting Title VII, he wrote, “Congress intended the term ‘sex’ to mean ‘biological male or biological female,’ and not one’s … sexual orientation.” In Oncale v. Sundowner Offshore Services, 523 U.S. 75, Manion noted, the nation’s highest court allowed the complaining male worker to sue his employer because the trial record — replete with threats of physical violence — had bolstered the theory that fellow male workers had harassed him precisely because he was a man. But, wrote the jurist, the present lawsuit rested largely on unactionable allegations that a male supervisor had harassed the male plaintiff because his gestures — lisping and flipping of the wrists — were specifically intimidating to men and their manhood. Concluded Manion: this “record contains no evidence to indicate” that the supervisor’s “gestures,” while evidence of his “homophobia,” were motivated by the requisite “general hostility to men.” In so ruling, the panel affirmed an earlier ruling by U.S. Magistrate Judge V. Sue Shields of the Southern District of Indiana, Indianapolis Division, granting summary judgment to the defending employer. It all began in 1996 when Gary Hamner filed his Title VII lawsuit after being fired by St. Vincent Hospital. A charge nurse in a unit of St. Vincent Stress Center, Hamner allegedly failed to notify his supervisor of having placed a do not resuscitate order in a patient’s file as required by hospital policy. But, Hamner insisted, he was really fired for having filed a grievance against the unit’s medical director, who was constantly making derogatory gestures at his expense. According to Hamner’s attorneys, the plaintiff had established a prima facie retaliatory case based on Title VII because he had “reasonably believed” that the alleged harassment was “because of his sex.” Nevertheless, wrote Manion, “Hamner’s belief may be sincere, but it is not objectively reasonable as a matter of law.”

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