As things currently stand in a volatile area of the law, sexual orientation is not protected by Title VII of the Civil Rights Act. However, any number of courts have held that “gender stereotyping” is prohibited by Title VII, and the two concepts often overlap.
A good case in point involves a Title VII lawsuit brought by Angela Roadcloud, a corrections sergeant for the City of Philadelphia. Roadcloud is openly gay. In her lawsuit, Roadcloud alleged that beginning in April 2011, the atmosphere at her job began to change. Roadcloud alleged she began to receive harassing comments from her supervisor, whose comments focused on Roadcloud’s perceived lack of femininity, outward signs Roadcloud had engaged in sexual contact, and Roadcloud’s sexual orientation. The harassment continued through June 2012, after which Roadcloud was transferred to a different facility with poorer conditions, less responsibilities, and fewer hours.
Roadcloud pointed to three incidents of harassment. First, her supervisor commented that Roadcloud “was getting some before she came to work,” was showing signs of recent sexual conduct, and was exhibiting a “passion mark” and disheveled hair. Second, the supervisor began to scream at Roadcloud with co-workers and supervisors nearby, telling Roadcloud in a threatening manner that he was aware of Roadcloud’s sexual preferences. Third, Roadcloud alleged that the supervisor encouraged Roadcloud’s co-workers and subordinates to ignore and disobey Roadcloud’s orders, and told Roadcloud, “If you don’t like it, you can leave.”
A federal court found these allegations sufficient to allege a Title VII discrimination claim on the basis of “gender stereotyping.” The Court found that “under Title VII, sexual orientation is not a protected class and cannot be the basis of a cognizable claim. Nonetheless, discrimination on the basis of a plaintiff’s failure to conform to expected gender stereotypes is discrimination on the basis of sex. A plaintiff may show that he or she was harassed by a member of the same sex by showing that the harasser was motivated by sexual desire, expressed a general hostility to the presence of one sex in the workplace, or acted to punish noncompliance with gender stereotypes.
“Roadcloud has sufficiently alleged defendants discriminated against her on the basis of her failure to conform to expected gender stereotypes. An employer that acts based upon the belief that women should not be aggressive, acts on the basis of gender. Hostile or paternalistic statements or acts based upon perceptions or expected qualities of womanhood are inherently based on sex or gender.
“Roadcloud has alleged that the harassment focused on Roadcloud’s appearance, specifically the signs of sexual conduct the supervisor believed Roadcloud exhibited. The supervisor made similar comments throughout 2011 and 2012 to Roadcloud’s supervisors and co-workers, but did not make similar comments about women that conformed to his expectations of a female.
“Roadcloud alleges she was harassed because her outward exhibition of sexual conduct did not meet defendants’ expectation of how a woman should look in the workplace or act in her private life. This is sufficient to allege defendants’ discrimination against Roadcloud was on the basis of her sex. The mere possibility that defendants’ actions were motivated by Roadcloud’s sexual orientation, instead of her failure to conform with gender stereotypes, cannot compel dismissal at this early stage of litigation.”
Roadcloud v. City of Philadelphia, 2014 WL 43759 (E.D. Pa. 2014).