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Dicta on sexual orientation discrimination is suspect.

Byline: Virginia Lawyers Weekly

Dicta from the Fourth Circuit that Title VII doesn't cover discrimination based on sexual orientation is questionable, but the plaintiff failed to plead sufficient facts to state claims against Virginia Tech.

Background

Brian Jones, who is openly gay, began working at Virginia Tech in August 2000. In approximately November 2015, Virginia Tech reassigned Jones to the position of customer support representative. Jones believes that his former position became the VTOC supervisor position, which remained open at the end of 2015 when Jones began his new role as a customer support representative. Jones alleges that Virginia Tech failed to consider or hire him for the supervisor position and similarly failed to consider or hire two other qualified homosexual male employees for the position.

On April 11, 2016, Jones submitted a written complaint to his supervisors. On May 31, 2016, Jones's new supervisor, Jennifer Gay informed Jones that he would have to work an "undesirable" weekend call schedule starting in mid-June 2016. On June 20, 2016, Jones arrived to work wearing a t-shirt with the logo, "Nike Be True," which signals support for the LGBT community. Later that day, Gay informed Jones that he had arrived late to work and that she found such conduct to be "'totally unacceptable.'"

Almost a year later, on May 9, 2017, Jones applied for an open position as a special assistant for state government relations at Virginia Tech (the "government relations position"). He alleges that "he was more than qualified" for the position, but despite his "qualifications and years of excellent service to Virginia Tech," his application was "immediately rejected."

On Nov. 29, 2017, Jones filed this action under Title VII of the Civil Rights Act of 1964, asserting various claims of discrimination and retaliation by Virginia Tech based upon Jones's sexual orientation.

Sexual orientation discrimination claims

Defendants claim that Jones cannot state a Title VII claim for discrimination based on sexual orientation. Defendants rely upon Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996), where the Fourth Circuit stated in dicta that "Title VII does not afford a cause of action for discrimination based upon sexual orientation." Several district courts within this circuit have relied on that dictum to dismiss Title VII claims for sexual orientation discrimination.

However, "legal doctrine evolves," and there has been a recent trend in U.S. Supreme Court decisions to expansively define sex discrimination under Title VII. I question whether the Fourth Circuit's prior statements are consistent with the current state of the law, given that they were made prior to the most recent Supreme Court, EEOC and circuit court decisions on this issue. However, even if I assume for the purposes of this opinion that discrimination based upon sexual orientation is prohibited by Title VII, I find that Jones has not provided sufficient facts to state a claim in this case.

Failure to state a claim

Assuming that Jones belongs to a protected class based upon his sexual orientation, I find that he has not pled sufficient facts to assert a plausible cause of action. The complaint does not identify any similarly situated male heterosexual employees for comparison. The complaint similarly fails to allege such facts about members of Jones's purported class. Accordingly, I have no basis for comparing members of a protected class with members outside that class to determine whether the treatment of the two was disparate.

Disparate impact

To establish a prima facie case of disparate impact discrimination under Title VII, a plaintiff must show that the facially neutral employment practice had a significantly discriminatory impact. Because Jones's complaint alleges only a single, isolated incident and emphasizes that the incident was unusual, he has not plausibly alleged that VTOC's attendance policy has a disparate impact on homosexual male employees. Second, Jones argues that Virginia Tech has an informal policy of demoting or failing to promote homosexual male employees. Not only is this policy not facially neutral, it has not been described in sufficient factual detail to plausibly infer that it has a discriminatory impact on homosexual male employees.

Failure to hire

Jones argues that Virginia Tech discriminated against him because of his sex when it failed to hire him for either the VTOC supervisor position or the government relations position. Defendants argue that Jones's failure to allege that Virginia Tech hired an individual from outside the protected class for either position proves fatal to his claim. I agree with defendants.

Retaliation

Jones complained to his VTOC supervisors about sexual orientation discrimination and then over a year later was rejected by individuals reviewing applications in a different department. These facts do not make it plausible to infer that Virginia Tech retaliated against Jones for opposing discriminatory activity.

Leave to amend

I will allow Jones leave to amend his complaint, and address the issue of whether sexual orientation discrimination claims are protected by Title VII if Jones provides sufficient facts to state a claim.

Jones v. Va. Poly. Tech. & State Univ., Case No. 17-cv-531, Sept. 25, 2018. WDVA at Roanoke (Ballou). VLW No. 018-3-409, 18 pp.

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Title Annotation:Jones v. Virginia Polytechnic Institute & State University, U.S. District Court for the Western District of Virginia
Publication:Virginia Lawyers Weekly
Date:Oct 9, 2018
Words:856
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