Gay Employee's Gender Stereotyping Claim Survives Motion to Dismiss

Author: Beth P. Zoller, XpertHR Legal Editor

April 14, 2014

The United States District Court for the District of Columbia denied an employer's motion to dismiss a homosexual employee's claim that he was discriminated against for failing to conform to the employer's traditional male stereotypes. Although Title VII does not include sexual orientation as a protected classification, it does prohibit same-sex gender-stereotyping discrimination.

In Terveer v. Billington, a homosexual employee claimed that his supervisor subjected him to a hostile work environment consisting of anti-gay slurs and harsh and discriminatory working conditions because the employee did not conform to the supervisor's perception of male gender stereotypes. The employee filed a complaint claiming sex discrimination (in addition to religious discrimination and retaliation) under Title VII. The employer responded with a motion seeking to dismiss the case because the employee had not provided sufficient information to adequately claim sex discrimination under Title VII.

However, the court disagreed with the employer. The court held that Title VII prohibits employers from discriminating against individuals because of their sex. Here, the court found that the employee's allegations that he was discriminated against based on gender stereotyping may be enough to prove a claim of sex discrimination.

This decision comes at a critical time when there is a legislative trend among the states (e.g., Delaware) and municipalities (Philadelphia and Tempe, Arizona) to make sexual orientation and gender identity protected classes. Further, the Employment Nondiscrimination Act, which would prohibit discrimination based on sexual orientation and gender identity, is once again pending in the US Congress.

On a related note, a number of district courts as well as the Equal Employment Opportunity Commission have ruled that transgender individuals may find protection under Title VII's ban on sex discrimination.