Rob Wiley

Judge says federal law does cover anti-LGBT discrimination

Tammye Nash | Managing Editor
[email protected]

A case now making its way through the U.S. District Court’s in the Northern District of Texas could provide a precedent-setting ruling in the U.S. 5th Circuit regarding whether Title VII of the civil rights act prohibits discrimination based on sexual orientation and gender identity.

Dallas attorney Rob Wiley said this week that Judge Karen Gren Scholer’s decision not to dismiss his client’s suit against Xerox claiming discrimination under Title VII marks the first time in the Northern District of Texas that a federal judge has ruled that anti-LGBT discrimination violates Title VII.

“Just to allow someone to proceed with [such a case] is a huge deal,” Wiley said. “Now that [Scott Berghorn] has done it, the next person can do it.”

Scott Berghorn filed a federal employment discrimination lawsuit against Xerox, his former employer, Xerox Corp., claiming in a second amended petition that he was fired because he is gay and “fails to conform with traditional gender stereotypes.” Lawyers for Xerox had moved to have the petition dismissed, but Judge Scholer, in an order denying that motion, noted that “Actionable sex discrimination under Title VII includes those who do not conform to sex or gender stereotypes.”

While Berghorn still has to prove his case, Scholer said, “Berghorn pleads sufficient facts to state a plausible claim that Xerox terminated his employment allegedly due to his failure to conform to gender stereotypes.”

Wiley said that Berghorn had worked at Xerox for 14 years and had risen to senior management, overseeing a team of auditors. During his employment there, he had won numerous awards and promotions, had earned outstanding reviews and had never been “disciplined in any way.”

Berghorn, with others in management, had been given a company credit card to pay for work-related expenses. Wiley said that common practice allowed employees to use those credit cards for personal expenses, as long as they clearly marked them as personal expenses and paid the charges themselves. He said that expense forms even included a box to check for personal expenses.

“One employee even used a company credit card to make his truck payments,” Wiley said. “People did it all the time, and no one was ever fired for it. Scott always marked his personal expenses on the receipts and paid for them himself. Always.”

However, Wiley continued, when a new supervisor took over, he initiated an investigation into Berghorn’s expenses and subsequently fired him. But, the attorney noted, that supervisor only initiated the investiation after learning that Berghorn is gay.

“We know [the investigation into expenses] was only a pretext for something else. We know it was because [Berghorn] didn’t conform to their gender stereotypes,” Wiley said.

Kenneth Upton, Senior Counsel for Lambda Legal’s South Central Region based in Dallas, said that Scholer is, technically, not the first judge in the 5th Circuit to rule that Title VII prohibits anti-LGBT discrimination. Judge Lee Rosenthal in the Southern District of Texas, in Houston, had ruled that Title VII does allow such claims, although that case — involving a woman who said she wasn’t hired by Phillips 66 because she is transgender — was dismissed “on the facts,” Upton said.

That was “not a strong case, based on the facts,” Upton said, whereas “it sounds like [Berghorn’s case] is stronger.”

Having gotten past “the coverage issue” — the question of whether Title VII covers anti-LGBT discrimination — Berghorn’s case “could be the vehicle for the 5th Circuit” to address the issue, Upton said. “Technically, the coverage issue is teed up” for the 5th Circuit judges via a different case, but that case is likely to be resolved on the facts, without the court even considering the question of coverage.

“The coverage issue” is confined to the 5th Circuit. In fact, varying rulings out of our circuits have set up an eventual showdown at the Supreme Court.

While the majority of appellate courts have said anti-LGBT discrimination is not prohibited under Title VII, there have been favorable rulings in the 7th and 2nd circuits, Wiley said.

Upton noted that the Supreme Court had refused to review a Lambda Legal case based on Title VII — Evans v. Georgia Regional Hospital — in which the lower court had ruled Jameka Evans, who said the hospital fired her because she was a lesbian who did not conform to gender norms, did not have a case under Title VII.

But, Upton added, “Evans wasn’t final then, and the Supreme Court usually doesn’t hear arguments on cases that aren’t final.”

The case was sent back to trial court for a hearing on the merits, and now that it has been settled, with the ruling in favor of the hospital, Lambda can appeal again.

But the showdown at the Supreme Court is already set, with a case out of New York — Zarda v. Altitude Express — in which the 2nd Circuit Court ruled that Title VII does cover anti-LGBT discrimination, and a case out of Florida — Bostick v. CBOCS Inc. — in which the 11th Circuit said it does not, both having been appealed to SCOTUS.

“These are two cases that have been finalized that went in opposite directions,” Upton said. “Both have been appealed. But [SCOTUS] still might not take either one. They [the cases] could just sit up there a long time, waiting for hearings.”

As for Berghorn’s case, Upton said, it has promise. “He [Wiley] is a good lawyer, and he’s on the right side of this issue. So I think he has a real chance at making some good law with this case.”

Wiley said neither he nor his client expect any resolution soon. Wiley said that now that Scholer has ruled on the coverage issue, the case is set for mediation in August, and “there’s always the possibility it would be settled in mediation, which would be a win for us.”

If mediation fails, he said, the case will go to trial.

“Change comes in the courts at a glacial pace,” Wiley said. “No judge is going to be out there waving the gay/bi flag in issuing rulings, especially not in this District or in the 5th Circuit.

“But this is a decision from a federal judge, and when other federal judges are considering this issue, they will have to look at this ruling as precedent,” he continued. “This is a very small step forward, yes. But it is a step forward.”