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Topics In the News
 
College Settles Discrimination Lawsuit
Posted by: Claude J. Summers on 08/02/12
Last updated on: 08/02/12
 
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Jacqueline Gill.

On July 19, 2012, Tarrant County College in Fort Worth, Texas settled a lawsuit brought by Lambda Legal alleging sexual orientation discrimination against Jacqueline Gill. The case is significant for a number of reasons, but especially because it illustrates how federal courts are becoming increasingly responsive to claims of discrimination against gay people by government entities.

Gill, a Ph.D. student and former high school English teacher, was hired in August 2009 as a full-time temporary professor at TCC's Northeast Campus in Hurst, Texas. When she was hired, she was told it was customary to employ full-time instructors on a temporary basis first, and that teachers who complete the one-year contract successfully are uniformly hired when the positions are made permanent.

Although Gill received high praise from students, parents, and colleagues, a former student whom Gill disciplined for academic dishonesty retaliated by falsely claiming that Gill flirted with female students in class. No formal charge or investigation took place, but she was subjected to a lengthy diatribe from English Department Chair Eric Devlin about "homosexuals" and about how "Texas and Tarrant County College do not like homosexuals."

Despite the promise that her position would be made permanent in 2010, Gill was notified that her contract would not be renewed. In September 2011, Lambda Legal filed suit in the U.S. District Court for Northern Texas against Devlin and Antonio Howell, Division Dean of Humanities, Tarrant County College NE Campus, on Gill's behalf, alleging discrimination on the basis of sexual orientation.

The College's motion for a summary dismissal of the suit was denied by the Court in March 2012. Without ruling as to whether Gill had in fact suffered discrimination, Judge Terry R. Means emphasized that the U.S. Supreme Court has held unequivocally that arbitrary discrimination on the basis of sexual orientation violates the Equal Protection Clause.

On July 19, Tarrant County College, though denying admission of guilt, agreed to pay Gill more than $160,000 (about three times her yearly salary), to provide her a positive letter of reccomendation, and to institute a written policy prohibiting employment discrimination based on sexual orientation or gender identity.

Although the case did not go to trial, Lambda Legal Supervising Senior Staff Attorney Kenneth Upton emphasized in announcing the settlement that the published decision by the U.S. District Court for the Northern District of Texas rejecting the College's motion to dismiss "makes it clear that public employers can no longer claim ignorance about whether discriminating against employees based on their sexual orientation violates the U.S. Constitution."

More information about the Gill case may be found on Lambda Legal's blog.

Scott Jaschik observes in Inside Higher Education that "Jacqueline Gill might seem to have had the odds stacked against her when she sued Tarrant County College for losing her job teaching English. Gill didn't have tenure and the legal protections that it brings. And she was suing the college for what she saw as discrimination based on sexual orientation, making her a lesbian suing a college that (at the time of her complaint) didn't bar bias based on sexual orientation, and she did so in a state (Texas) that doesn't prohibit such discrimination."

But federal courts have long held that sexual orientation discrimination against public employees is prohibited even in the absence of statutory protections. What is different now is that lower courts are receiving more complaints and handling them more forthrightly.

In that sense, the settlement in Jacqueline Gill's case is similar to court rulings handed down last year in two employment discrimination cases that I blogged about in December.

On December 6, 2011, the Eleventh Circuit Court of Appeals in Atlanta upheld a lower court ruling that the Georgia General Assembly discriminated against Vandy Beth Glenn, a transgender woman who was fired from her job as Legislative Editor after she told her supervisor that she planned to transition from male to female.

In a forceful opinion authored by Judge Rosemary Barkett for a unanimous three-judge panel, which included one of the most conservative judges on the federal bench, Judge William Pryor, the Court declared, "An individual cannot be punished because of his or her perceived gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual. . . . A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes."

The decision states unequivocally: "We conclude that a government agent violates the Equal Protection Clause's prohibition on sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity."

The plaintiff in the case, Vandy Beth Glenn, worked for two years in the General Assembly's Office of Legislative Counsel as an editor and proofreader. In 2007, Glenn informed her immediate supervisor, Beth Yinger, that she planned to transition from male to female, and showed Yinger photographs of herself in professional female attire. Yinger passed the information on to her boss, the General Assembly's Legislative Counsel, Sewell Brumby.

After confirming that Glenn intended to transition, Brumby fired her. Brumby, who described Glenn's sex change as "immoral" and "disturbing," conceded that her "intended feminine appearance" contributed to her termination.

The other case led to a six-figure settlement for Shari Hutchinson, an Ohio state government worker who was discriminated against because of her sexual orientation.

Hutchinson worked as a support officer in the Child Support Enforcement Agency for Cuyahoga County, Ohio. Despite high scores on standardized tests, her Executive MBA, and two decades of work experience in the private sector, Hutchinson was repeatedly passed over for promotions after coworkers found out that she is a lesbian.

Hutchinson's supervisors failed to give her an annual review for five consecutive years. Once she learned that straight coworkers were being promoted to more than a dozen positions for which she qualified, and that office mates were spreading rumors about her, she decided to sue.

The state alleged that "all of Hutchinson's claims must fail because sexual orientation is not a protected class, and thus does not merit the constitutional protection, under the Equal Protection Clause, that Hutchinson seeks." However, U.S. District Judge James W. Gwin rejected that argument.

He wrote: "Simply because Title VII does not include sexual orientation as a statutorily protected class does not . . . automatically remove all constitutional protection where a plaintiff employee claims equal protection violations based on her membership in that class."

Upon this ruling, the state offered a settlement to Hutchinson.

Judge Gwin's ruling is consistent with other rulings that have held that public employers cannot discriminate on the basis of sexual orientation. Public employees, even in states that promote anti-gay policies, have more protection under the law than many of them think they do.

Hutchinson was able to sue on the basis of equal protection only because she worked for a public agency. Had she worked in the private sector, she probably would have had no basis to pursue her suit, since Ohio laws do not prohibit discrimination on the basis of sexual orientation.

That is why, despite the victory in the Hutchinson case, the proposed federal Employment Non-Discrimination Act (ENDA) is sorely needed.

Similarly, although the victory in the Glenn case indicates that transgender employees are protected from discrimination on the basis of sex, ENDA is needed to reenforce that protection.

As Gregory R. Nevins, the attorney who argued the Glenn case on behalf of Lambda Legal Defense and Education Fund, has observed, "The law is on our side, but everyone shouldn't need a lawyer to help them fight workplace discrimination. Congress must pass the Employment Nondiscrimination Act (ENDA) because we still need a federal law to tell employers unequivocally that discrimination against LGBT employees in the workplace is illegal. We are proud of Vandy Beth for standing up for her rights--her courage has helped clear the path for others."

 
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