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Texas Court Dismisses Title VII Sexual Orientation Claims

Edgar M. Rivera, Esq.

On November 15, 2017, in Berghorn v. Texas Workforce Commission, the District Court for the Northern District of Texas dismissed with prejudice plaintiff Kyle Berghorn’s sexual orientation discrimination claim, but allowed him to re-plead his gender stereotyping claim. Berghorn alleged that Xerox terminated his employment because he is gay and because he failed to conform to Xerox’s gender stereotypes. Both of Berghorn’s claims arose under Title VII of the Civil Rights Act of 1964 (“Title VII”).

Berghorn was employed by Xerox from 2002 until February 29, 2016. At the time of his termination, he held the position of senior manager. Xerox terminated Berghorn after finishing an investigation, which purportedly concerned Berghorn’s use of expenses, but in which Xerox instead asked Berghorn several questions about whom Berghorn was sleeping with and whether the person was male. Allegedly, Xerox employees had previously made other disparaging comments about Berghorn’s sexuality, like, “He has no children. He’s gay.” Ultimately, the investigation revealed that Berghorn had not stolen any money from the company and that he had himself paid for personal charges on his card; his expenses were in order. Nonetheless, Xerox fired him.

Xerox argued that Berghorn’s sexual orientation discrimination claim failed as a matter of law because Title VII does not protect against discrimination based on sexual orientation. Berghorn disagreed and argued, relying on Seventh Circuit authority, that he asserted a valid claim. Following Fifth Circuit precedent in Blu v. Gulf Oil Corp (1979) and Smith v. Liberty Mutual Insurance (1978), the district court held that Title VII’s sex discrimination provision did not cover sexual orientation. Berghorn argued that these authorities were “outdated,” but the court was not persuaded, stating that, regardless of any cultural differences between the 1970s and the present, it was bound by Fifth Circuit precedent. “[U]nless and until overruled by the Fifth Circuit or the Supreme Court, or Congress elects to extend Title VII protection to sexual orientation, the court cannot disregard Fifth Circuit precedent regardless of the age of the case,” the court stated, dismissing the claim.

Regarding Berghorn’s gender stereotyping claim, Berghorn claimed that, while employed by Xerox, the employees at issue repeatedly made “derisive” comments that he slept with other men, that he had grown too close to other men, and that he could not have children. He argued that these examples showed sex discrimination, since they were “rooted” in the traditional gender stereotypes that men should have sex with women and should not be “too” emotionally close to other men. Xerox responded that, in sum, Berghorn’s gender stereotyping claim simply attempted to recast his failed sexual orientation claim and that the allegations had nothing to do with gender. The court again agreed with Xerox, but allowed Berghorn to amend his pleadings to provide further support for his gender stereotyping claim.

LGBT employees in New York are protected by state and city anti-discrimination laws. If your employer has discriminated against you because of your sexual orientation or gender, contact The Harman Firm, LLP.

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