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Sexual Harassment Claims Are Not Limited To Heterosexual Employees Only

Many different sex orientation symbols

Under Title VII of the Civil Rights Act of 1964 (Title VII), employees are protected from discrimination because of sex.  Sexual harassment is a form of sex discrimination forbidden by Title VII.  To date, all of the federal courts of appeals, except the U.S. Second and Seventh Circuit Courts of Appeals, have ruled that discrimination on the basis of sexual orientation does not violate Title VII prohibition against discrimination because of sex.  In holding that discrimination on the basis of sexual orientation is not unlawful discrimination because of sex, these courts have also ruled that harassment on the basis of sexual orientation does not violate Title VII’s prohibition against discrimination because of sex. 

The holdings in this long line of decisions create problems for gay and lesbian employees who bring sexual harassment claims under Title VII.  Having extensive experience representing sexual harassment victims, our Central Florida hostile work environment harassment attorneys have learned that employers frequently defend Title VII sexual harassment claims by gay and lesbian employees by arguing that the employee was not harassed because of sex, but instead was harassed on the basis of sexual orientation.  Employers then contend that because the employee was harassed on the basis of sexual orientation, they cannot be held liable for the harassment because Title VII does not prohibit sexual orientation harassment.       

However, as the United States District Court for Oregon in Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d 1212 (D. Or. 2002) explained, “[n]othing in Title VII suggests that Congress intended to confine the benefits of that statute to heterosexual employees only.”  In other words, Title VII sexual harassment claims are not limited to heterosexual employees only.  The recent decision by the United States First Circuit Court of Appeals in Franchina v. Providence Fire Dep’t, No. 16-2401 (1st Cir. Jan. 25, 2018) is instructive in showing how gay and lesbian employees can prove that they were harassed because of sex in violation of Title VII.

Employee Endures Egregious Sex-Based Harassment

In that case, Lori Franchina (Franchina) brought a sexual harassment claim against her former employer, the City of Providence Fire Department (the Department), under Title VII.  During her employment with the City, Franchina was assigned to work a shift with another firefighter named Ferro.  Ferro allegedly had a history of sexually harassing female firefighters and was the subject of another sexual harassment lawsuit, O’Rourke v. City of Providence, 235 F.3d 713 (1st Cir. 2001).

During her first workplace encounter with him, Franchina alleged that Ferro asked her whether she was a lesbian.  When Franchina told him that it was none of his business, Ferro said, “I don’t normally work with women; but, you know, we like the same thing, so I think we’re going to get along.”  Franchina claimed that Ferro’s harassment continued throughout rest of her shift.  Franchina alleged that Ferro offered to impregnate her, began rubbing his nipples in a circular motion and referred to her as “my lesbian lover,” and entered her personal quarters when she was changing while wearing what appeared to be only his boxers and a shirt.  When Franchina told him to leave, Ferro initially refused.

Although Franchina did not make a complaint about Ferro’s behavior, Chief Curt Varone (Chief Varone), a high level officer with authority over all of the stations within the Department, called Franchina because he had “gotten wind” of what happened.  During the phone call, Franchina provided Chief Varone the details regarding Ferro’s behavior.  Based on Franchina’s explanation, Chief Varone filed a written complaint against Ferro charging him with sexual harassment and exposing him to employment termination. 

After Chief Varone’s sexual harassment complaint was made, other firefighters began to treat Franchina with “contempt and disdain.”  The harassing behavior towards Franchina included ostracizing her in the workplace, refusing to share meals with her, refusing to assist her on emergency runs, taunting her with personal insults on a bulletin board, and hurling gender-based epithets at her such as “b****,” “lesbo,” and “frangina.”

Eventually, Franchina transferred to another station.  However, the harassing behavior continued unabated in its frequency and severity.  Franchina was regularly subjected gender-based epithets and abusive conduct intended to interfere with her work performance.  On one occasion, a firefighter purposefully failed to put a wheelchair on one of Franchina rescue vehicles.  On another occasion, a firefighter refused to drive a severely injured accident victim.  On yet another occasion, a firefighter flung the blood and brain matter of a suicide-attempt victim at her.  On still another occasion, a firefighter, who had previously yelled that “affirmative action was killing this [ ] job,” and later pushed her into a wall when no one was looking. 

After the blood and brain matter of a suicide-attempt victim were flung at her by a firefighter, Franchina went out on disability leave for six months.  When she returned to the workplace, the harassment continued.  At one point, Franchina obtained a temporary restraining order against another firefighter because of his abusive behavior.  As a result of the continuous harassment, Franchina was placed on injured-on-duty status.  Some seven years after the incident with Ferro, Franchina officially retired on disability after being diagnosed with severe post-traumatic stress resulting form the numerous acts of harassment. 

Employer’s Spin:  Harassment Because Of Sexual Orientation

After an eight-day trial, a jury concluded that Franchina had been subjected to hostile work environment harassment because of sex in violation of Title VII.  On appeal, the Department argued that that Franchina had failed to prove that she was harassed because of sex in violation of Title VII.  Instead, the Department contended, Franchina “inappropriately blurred the line between sex and sexual orientation discrimination under Title VII.”  In doing so, according to the Department, Franchina only presented evidence that she was harassed on the basis of sexual orientation and presented no evidence that she was harassed because of sex.  Taking this self-serving argument to its manufactured conclusion, the Department then summarily concluded that because Franchina only presented evidence that she was harassed on the basis of sexual orientation, her Title VII harassment claim failed as a matter of law because Title VII does not prohibit harassment on the basis of sexual orientation.

Court’s Finding:  Harassment Because Of Sex

In rejecting the Department’s argument and upholding the jury’s verdict, the First Circuit found that Franchina had “presented a plethora of evidence showing that the impetus for the discrimination she sustained was based in part on her being a female.”  The appellate court explained that Franchina was continuously subjected to gender-based epithets and courts have “consistently held” that the use of gender-based epithets constitutes “harassment based upon sex.”  The trial court further observed that Franchina had presented evidence that “women were treated as less competent” than men which is “a treatment barred by Title VII.”  The appellate court also pointed out that there was evidence that “men treated women better when they were perceived as willing to have sex with them.”  The appellate court further explained that the explicitly sexual nature of Ferro’s behavior, including sexual remarks, sexual innuendo, and proposals of sexual activity, was indisputably harassment because of sex.  Thus, the First Circuit concluded, “this sampling of evidence” demonstrates that Franchina was harassed because of sex in violation of Title VII.

Free Consultation With Ocala Sex Discrimination Attorneys 

Based in Ocala, Florida and representing employees throughout Central Florida, we have almost twenty years of experience litigating sex discrimination cases.  If you have been the victim of sex discrimination, or have questions sex discrimination in the workplace, please contact our office for a free consultation with our Central Florida sex discrimination lawyers.  Our employee rights law firm takes gender discrimination cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover. 

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