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The city of Providence, R.I., is liable for sexual harassment of a lesbian firefighter who faced misogynistic and homophobic slurs, the U.S. Court of Appeals for the First Circuit ruled.
“While this case doesn’t go as far as overruling some bad precedent about sexual orientation claims, it cracks open the door in a way that’s important,” Anthony Kreis, an employment discrimination law professor at the Illinois Institute of Technology Chicago-Kent College of Law in Chicago, told Bloomberg Law Jan. 25. “It links sex to sexual orientation in a way that makes it harder to say in the First Circuit that sexual orientation discrimination isn’t a form of sex discrimination.”
Lori Franchina, a former Providence firefighter, said she was subjected to slurs such as “lesbo” and “bitch.”
“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,” Judge O. Rogeriee Thompson wrote for the First Circuit.
Franchina retired on disability after being diagnosed with post-traumatic stress disorder in connection with the abuse she experienced at work, Thompson said. The city didn’t contest that she could no longer work as a rescue lieutenant because of her permanent disability.
After an eight-day trial, a jury sided with Franchina in her sexual harassment lawsuit under Title VII of the 1964 Civil Rights Act. The appeals court upheld an $806,000 verdict the jury reached on the lawsuit she filed under a “sex-plus” theory of sex discrimination.
A sex-plus claim is a type of sex discrimination claim based on someone’s sex plus another factor. “The idea is that that the person’s being discriminated against because of their sex and something else, like women who are mothers,” Kreis said. “It’s like a sub-class of women,” he said.
“What the court here is saying is women who are lesbians can bring a sex-plus claim. Here they’re in essence saying that sexual orientation is a characteristic that’s linked to the employee’s sex,” Kreis said.
A lawyer for Franchina also said the decision seems to move the First Circuit in the direction of finding that discrimination based on sexual harassment is a form of sex discrimination prohibited by Title VII.
“I thought that their references to cases from other circuits was compelling evidence that they are thinking of moving in the same direction,” John Martin said. “The court’s footnote indicated to me that they looked very favorably at the idea and how the law developed in the last few years to include sexual orientation.”
The court said in a footnote that “the tide may be turning when it comes to Title VII’s protections,” citing an April 2017 decision by the Seventh Circuit called Hively v. Ivy Tech Community College. It was the first time a federal appeals court said Title VII bars sexual orientation discrimination.
“Though Franchina originally brought a separate claim alleging sexual-orientation discrimination under Title VII, the district court dismissed that count at the motion to dismiss stage of this case,” the First Circuit said. “Franchina did not appeal that decision and so it is not before us.”
The city attorney who argued the case said Franchina needed male comparators.
“Our view was that in order to make a case for sex-plus that you needed to compare two groups of different genders and that would differentiate the genders,” Kevin McHugh, a senior assistant city solicitor, told Bloomberg Law Jan. 25. “In order to do that, the comparison would be gay male firefighters to lesbian female firefighters.”
Thompson wasn’t persuaded by the city’s contention. “This approach—one that we have never endorsed—has some rather obvious flaws,” the judge wrote. “Under such an approach, for example, discrimination against women with children would be unactionable as long as the employer employed no fathers.”
Judges Juan R. Torruella and William J. Kayatta Jr. joined the opinion.
The decision in Franchina’s case is “not a robust ruling in the way that Hively was in fully recognizing that sexual orientation discrimination is a form of sex discrimination, but it opens the door,” Kreis said. Kreis filed an amicus brief arguing Title VII covers sexual orientation in a similar Second Circuit case. The court heard oral argument in September and could rule at any time.
Martin, Kathy Jo Cook, and Benjamin Duggan with KJC Law Firm LLC in Boston represented Franchina.
McHugh and Kathryn Sabatini, an associate city solicitor, represented the city.
The case is Franchina v. City of Providence, 2018 BL 25724, 1st Cir., No. 16-2401, 1/25/18.
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