BY ARTHUR S. LEONARD | A three-judge panel of the San Francisco-based US 9th Circuit Court of Appeals ruled on January 10 that a gay employee discharged two days after filing a sexual orientation discrimination complaint may sue for violation of the anti-retaliation provision of the federal Civil Rights Act of 1964. That statute does not prohibit employment discrimination based on sexual orientation.
Reversing a ruling by US District Judge Ann Aiken of Oregon, in a suit by Shane Dawson against Entek International, the court ruled that Aiken erred by depriving Dawson of a trial on his retaliation claim, as well as a sexual orientation discrimination claim under Oregon state law.
It is unclear from Judge David C. Bury’s opinion whether the court was aware it might be staking out new ground in applying the anti-retaliation provision of federal law. That provision makes it an “unlawful employment practice” for an employer to discriminate against any employee “because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.”
Federal courts have generally interpreted this to protect employees from retaliation when they formally complain about discrimination based on race or color, religion, sex, or national origin, the prohibited grounds of discrimination under the 1964 Act’s Title VII.
Courts, however, have generally found it does not protect employees who complain about discrimination covered by other laws such as the Age Discrimination in Employment Act or the Americans With Disabilities Act, which have their own anti-retaliation provisions. The provision would not logically bar retaliation for complaining about discrimination that violates state but not federal law.
However, according to some courts, the retaliation provision might protect an employee who believed in good faith that the conduct about which he was complaining violated Title VII, even if that belief proved to be incorrect. There is a widespread — but woefully mistaken — belief by the general public that federal civil rights law forbids sexual orientation discrimination.
Shane Dawson, who started at Entek in 2007, was known to be gay by some co-workers, and anti-gay verbal harassment by his trainer and others quickly ensued. In response to mounting harassment, he took a day off, calling the company in advance of his shift and asking that his supervisor be told of his planned absence — an action that did not comply with the specific rule that he directly speak to the supervisor. When he returned to work, he visited the Human Resources Department to make a formal complaint about the harassment he faced. Two days later he was fired, ostensibly for violating the call-in rule.
Dawson’s federal court complaint charged Entek with hostile environment sexual harassment and unlawful retaliation under federal law, as well as sexual orientation discrimination, retaliation, and intentional infliction of emotional distress under Oregon law. Entek moved to have the case dismissed, arguing that all of Dawson’s claims were invalid. Federal law, the company said, does not prohibit sexual orientation discrimination, and the retaliation claim could not stand in the face of Dawson’s failure to comply with the call-in absence policy. Entek also argued that Oregon’s gay rights law was not enacted until after Dawson’s firing.
Judge Aiken agreed with Entek that Dawson had no valid federal claim, and granted summary judgment for the company, also dismissing the state law claims; federal courts typically discharge state law claims if there is no longer a federal law challenge.
The court of appeals panel agreed with Entek that Dawson’s hostile environment sex discrimination claim was not valid. Some 9th Circuit courts have afforded protection to gay employees charging bias on the theory that they faced discrimination because of “gender nonconformity.” The appeals panel found no evidence in the record that Dawson did not conform to masculine gender stereotypes.
The appeals panel, however, did find that Dawson had alleged a potentially valid anti-retaliation claim. According to Judge Bury, the plaintiff must show that “he engaged in protected activity and that his employer, Entek, retaliated against him in response to that activity.” Dawson’s “protected activity” was making “a complaint to human resources staff based directly on sexual orientation discrimination.” Since federal law does not forbid sexual orientation discrimination, the panel’s conclusion that Dawson’s complaint could trigger federal anti-retaliation protection appears to be an extension of existing law.
Or, it could be that the court meant, without expressly saying so, that Dawson was protected based on his good faith belief he was complaining about discrimination unlawful under federal law.
Unfortunately, Bury’s opinion does not clearly spell out which of these intentions the panel had in coming to its ruling. It is also uncertain whether the panel’s ruling would hold up if Entek won review from a larger panel of the 9th Circuit.
When it revived Dawson’s federal anti-retaliation claim, the court of appeals also allowed his state law anti-discrimination claim to remain live, noting that a 1998 Oregon court of appeals ruling had applied sex discrimination provisions to extend to sexual orientation, years before the state enacted a gay rights law.
The panel agreed with Aiken and the company that its conduct in firing Dawson was not sufficiently nasty to trigger an emotional distress claim.
The case now goes back to a US district court for trial on the federal anti-retaliation claim and the state sexual orientation harassment claim.