The federal First Circuit Court of Appeals has affirmed a jury verdict against the Providence Fire Department (PFD) in a sexual harassment lawsuit filed by a lesbian who formerly served as a lieutenant in PFD. The plaintiff, Lori Franchina, suffered severe sexual harassment and after she reported the harassment to PFD she experienced severe retaliation. Some of the harassment and retaliation included: a man on the first day he met her telling her that he could impregnate her if she wanted because he knew she was a lesbian; this same man later opened the closed door to Franchina’s bedroom in the firehouse, walked in while she was getting undressed, and refused to leave until the third time she asked him to “get the f—k out”; multiple people used sexist epithets to refer to her; another person tampered with her food and made her sick; and, in one disgusting incident, someone flung blood and brain matter from a suicide victim on her. To remedy the damages that Franchina suffered, Franchina was awarded $806,000.
One of the legal hurdles that Franchina had to overcome to win this case was that she had to argue that she experienced discrimination based on her sex, not just her sexual orientation. This is because the First Circuit previously determined, about 20 years ago in a case called Higgins, that the law Franchina sued PFD under, Title VII, does not prohibit sexual orientation discrimination.
The First Circuit judges in this case distinguished the facts of Higgins from the facts of Franchina’s case because Franchina suffered harassment not just because she was gay but, rather, because she was both a woman and a gay person. Thus, the First Circuit found that this case fit into a category of Title VII cases called “sex-plus” cases. A common type of sex-plus case is where a woman with children gets discriminated against not just because she is a woman but, rather, because she is a woman with children. Similarly, Franchina experienced harassment (a form of discrimination) not just because she was a woman but, rather, because she was a woman who was gay.
Some courts around the nation have agreed with the First Circuit’s decision in Higgins that sexual orientation discrimination is not sex discrimination but other courts have disagreed. The Seventh Circuit Court of Appeals, in Chicago, recently determined that Title VII prohibits sexual orientation discrimination because, the court reasoned, sexual orientation discrimination is a form of sex discrimination. The Eleventh Circuit Court of Appeals in Atlanta, however, recently reached the same conclusion as the First Circuit in Higgins. The Second Circuit Court of Appeals, in New York, is currently considering the issue and will likely issue an opinion soon. This Second Circuit case is notable because the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission presented competing arguments to the Second Circuit with DOJ arguing that Title VII does not prohibit sexual orientation discrimination and the EEOC arguing that it does. Given the split of opinions between different Circuit Courts of Appeal, the Supreme Court may soon settle this issue.
LGBT Mainers, fortunately, have the benefit of the Maine Human Rights Act which expressly prohibits sexual orientation discrimination and has been interpreted to also prohibit gender identity discrimination. Thus, LGBT Mainers who experience discrimination have firmly grounded rights and should contact an experienced employment lawyer for advice on pursuing legal action.