First Circuit Recognizes Sexual Orientation as the “Plus” in “Sex-Plus” Discrimination Suit

The First Circuit has recognized for the first time that sexual orientation can be the “plus” in a “sex-plus” discrimination case. The facts upon which a Rhode Island federal district court jury (and ultimately the First Circuit) found gender discrimination premised on the “sex-plus” theory are vile. The plaintiff, a female former lieutenant firefighter, was regularly subjected to abhorrent verbal assaults and abuse by members of the Providence Fire Department.

The plaintiff’s discrimination claims arose from Title VII of the Civil Rights Act of 1964, which makes it unlawful for an employer to discriminate in various ways against any individual based on a protected characteristic such as sex. In brief, a “sex-plus claim” is a type of gender discrimination claim where an employer unlawfully classifies employees based on sex plus another characteristic. The question that “sex-plus” claims pose is simple: did the employer take an adverse employment action at least in part because of an employee’s sex?

The First Circuit determined that there was no reason why the “plus-factor” of sexual orientation would not be viable if a gay or lesbian plaintiff also demonstrates discrimination due to his or her gender (at least in part). Under this analysis, the case’s facts were more than satisfactory for the jury to find gender discrimination based on a hostile work environment:

    In sum, the jury heard evidence of repeated hostile, gender-based epithets, ill treatment of women as workers, sexual innuendoes, and preferential treatment for women who were more likely to sleep with the men of the Department. This sampling of evidence demonstrates that the “accumulated effect . . . taken together” constitutes a hostile work environment.

The case at issue is Franchina v. City of Providence. The First Circuit approvingly recognized the Seventh Circuit’s earlier Hively decision, but did not need to go as far as that court because the question of whether sexual orientation is protected under Title VII was not before it. If you are interested in the Hively decision, you should refer to our April 6, 2017 post, here. Other informative posts about Title VII can be found throughout massemploymentbizlit.com. If you have any questions about workplace discrimination, or how to create a supportive work environment for your employees, contact the experienced, talented employment law attorneys at Conn Kavanaugh. We are always happy to answer your questions.

ANTHONY V. BOVA

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2018-02-02T21:17:55+00:00 February 2nd, 2018|Categories: Anthony Bova, Discrimination & Harassment, Litigation|0 Comments

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