Court Ducks Firefighter’s ‘Sex Plus Height’ Claim

Tonya Coffman, who is by her own description five feet tall “with shoes on,” began working for the Indianapolis Fire Department in April 2001. Her tenure was unremarkable until late 2003, when two fellow firefighters expressed concern about her driving ability. One lieutenant observed that Coffman “needed to put the bench seat all the way forward in order to reach the pedals and needed to literally hold onto the steering wheel for support.” Days later, another firefighter emailed several chiefs stating that Coffman “could not safely operate the vehicle because she had to look through the steering wheel to see out the front window and use her upper body to hold herself up in her seat.”

These e-mails prompted a series of safety evaluations of Coffman’s driving. The safety concerns broadened into larger scope when a captain reported alleged deficiencies in other areas, including her perception that Coffman had difficulty socializing with and asking for help from fellow firefighters. Other firefighters added their observations that Coffman was “often alone or withdrawn” and seemed to be “defensive” for “no legitimate reason.” The Department eventually became concerned that Coffman had not developed satisfactory EMS skills.

The Department required Coffman to undergo a psychological fitness-for-duty evaluation. A psychologist opined that though Coffman was not suffering from any type of psychological disorder, she was obviously unhappy with “some aspect of her work life.” She recommended referring Coffman to six weeks of individual therapy through a private therapist unaffiliated with the Department and recommended a light-duty assignment on account of Coffman’s “withdrawn demeanor and unwillingness to explain what is bothering her.”

Coffman was eventually returned to full duty, after which she sued the Department, claiming that the safety tests and fitness-for-duty evaluation amounted to gender discrimination and sexual harassment under Title VII. A federal Court of Appeals upheld a trial court’s decision to dismiss the lawsuit.

Coffman contended that the Department discriminated against her as a short female in particular. This claim brought forward what courts call a “sex-plus” theory of discrimination, which hinges on disparate treatment based on sex in conjunction with another characteristic. In Coffman’s case, the “other characteristic” was her height.

The Appeals Court refused to decide the issue, holding that “whether or not we explicitly recognize ‘sex plus height’ as a vehicle for a Title VII discrimination lawsuit, Coffman must demonstrate that the safety tests, the fitness-for-duty evaluations, and the subsequent suspensions from duty and reassignment to light duty occurred at least in part because she is female. On this front, Coffman simply reiterates that she is a woman and therefore a member of a protected class under Title VII. The fact that she is female, without more, goes nowhere towards demonstrating mistreatment on account of her sex. Certainly many females (and males) have endured unpleasant behavior in a work force, but Title VII is not a panacea for bad behavior in a workplace; it forbids discrimination with respect to an individual’s compensation, terms, conditions, or privileges of employment because of such individual’s sex. In short, Coffman has failed to link her treatment through either circumstantial or direct evidence with the fact that she is female.”

Coffman v. Indianapolis Fire Department, 2009 WL 2525762 (7th Cir. 2009).

This article appears in the October 2009 issue