It is rare to find a court’s opinion that starts off with the fury found in the federal First Circuit Court of Appeals’ decision in a lawsuit brought by Lori Franchina against the Providence Fire Department. After a jury awarded Franchina $700,000 in damages and a trial court added $184,000 in legal fees, the City challenged the decision on appeal.
The 60-page Appeals Court’s decision begins, “Sticks and stones may break some bones, but harassment can hurt forever. ‘Cunt,’ ‘bitch,’ ‘lesbo’ all are but a smattering of the vile verbal assaults the plaintiff in this gender discrimination case, Lori Franchina, a former lieutenant firefighter, was regularly subjected to by members of the Providence Fire Department. She was also spit on, shoved, and – in one particularly horrifying incident – had the blood and brain matter of a suicide-attempt victim flung at her by a member of her own team.
“After an eight-day trial, a jury concluded that Franchina had been discriminated against on the basis of her gender and retaliated against when she dared protest her treatment. For her ordeal, she was awarded front pay as well as emotional damages. The City now appeals, making numerous arguments as to why the jury verdict should be set aside or, in the alternative, why the judge’s front pay award should be stricken. Because we decline to put out flames of the Department’s own making, we affirm.”
The heart of the Court’s opinion turned on what a “sex-plus theory” is under Title VII of the Civil Rights Act. The Court explained that “sex-plus” cases involve “a flavor of gender discrimination claims where an employer classifies employees on the basis of sex, plus another characteristic.” In Franchina’s case, the “plus” was the fact that she is a lesbian.
The Court commented that “the City contends, as best we can tell, that for a plaintiff to be successful under a sex-plus theory, a separate, more stringent evidentiary standard exists than for straight claims of sex discrimination. The City, it seems, believes that under a sex-plus theory, plaintiffs are required to identify a corresponding sub-class of the opposite gender and show that the corresponding class was not subject to similar harassment or discrimination.
“Thus, for Franchina to succeed, the City tells us she is required to have presented evidence at trial of a comparative class of gay male firefighters who were not discriminated against. Without such a showing, the City contends, it would not be possible to prove that any sort of differential treatment a plaintiff experiences is necessarily predicated on his or her gender.
“This approach – one that we have never endorsed – has some rather obvious flaws. Such a standard would permit employers to discriminate free from Title VII recourse so long as they do not employ any sub-class member of the opposite gender. But, of course, that cannot be. Under such an approach, for example, discrimination against women with children would be unactionable as long as the employer employed no fathers. The result that would follow from the City’s approach would, thus, be inapposite to Title VII’s mandate against sex-based discrimination.
“At core, the City believes that Franchina has presented no evidence to support her claim that the harassment she experienced was a result, at least in part, of her gender. Rather, it contends Franchina inappropriately blurred the line between sex and sexual orientation discrimination under Title VII.
“However, Franchina presented a plethora of evidence showing that the impetus for the discrimination she sustained was based in part on her being a female. There was repeated evidence that Franchina was called a ‘bitch,’ ‘cunt,’ and ‘Frangina.’ The use of these words is inherently gender-specific and their repeated and hostile use can reasonably be considered evidence of sexual harassment. In fact a raft of case law establishes that the use of sexually degrading, gender-specific epithets, such as ‘slut,’ ‘cunt,’ ‘whore,’ and ‘bitch,’ has been consistently held to constitute harassment based upon sex.
“There was also evidence that women were treated as less competent; a treatment barred by Title VII. There was evidence that men treated women better when they were perceived as willing to have sex with them. There was evidence that Franchina was subjected to humiliating sexual remarks and innuendos by one firefighter, including asking the plaintiff if she wanted to have babies and if he could help her conceive. This type of sexually-based animus is a hallmark of Title VII.
“The abuse Lori Franchina suffered at the hands of the Providence Fire Department is nothing short of abhorrent and, as this case demonstrates, employers should be cautioned that turning a blind eye to blatant discrimination does not generally fare well under anti-discrimination laws like Title VII.”
Franchina v. City of Providence, 2018 WL 550511 (1st Cir. 2018).
Note: The law is in a huge state of flux (and conflict) over whether Title VII treats sexual orientation as a protected class, much in the way it treats race and gender. The Department of Justice has recently taken the position that Title VII does not cover sexual orientation, a position opposite to that of the Equal Employment Opportunity Commission. The First Circuit’s decision in Franchina somewhat dodged the issue by finding that Franchina was discriminated against, in part, because she was a woman, and not just because she was a lesbian.