Despite sweeping new legal protections for gay and lesbian individuals throughout the country, a court in Illinois recently ruled that federal law permits sexual-orientation discrimination and harassment in the workplace. Judge Andrea R. Wood, appointed by President Obama to the U.S. District Court for the Northern District of Illinois in 2013, acknowledged that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects victims of “sex stereotyping.” However, she was constrained by decision of the U.S. Court of Appeals for the Seventh Circuit (“Seventh Circuit”) in a different case. Under that appellate decision issued in 2000, harassment of an employee solely on the basis of that “person’s sexual preference or orientation … is not an unlawful employment practice under Title VII.”
The plaintiff in Igasaki v. Illinois Department of Financial and Professional Regulation, et al., Case No. 15-cv-03693 (N.D. Ill. Jan. 20, 2016), was a staff attorney for a state agency that regulates medical doctors. He alleged that he was the only gay staff attorney in the agency’s Medical Prosecutions Unit, that he had been employed by the agency for roughly 20 years, and that he was never disciplined before being suspended and then terminated. According to the plaintiff, the trouble began in 2011 when a new chief of the Medical Prosecutions Unit was hired as his direct supervisor.
Although the first performance review from his new supervisor was positive, the plaintiff claimed that the new chief began to harass him shortly after she learned he was gay. While such an allegation may tend to boost a plaintiff’s claim in other discrimination cases – for example, an allegation that a supervisor started mistreating an employee upon learning the employee is married or pregnant or disabled – it turned out to be the downfall of the plaintiff’s sex-discrimination claim in this case.
The plaintiff alleged that, after learning he was gay, the new supervisor delegated a heavy caseload to him, set impossible deadlines for him, reassigned him to an undesirable workstation, singled him out for case reviews, tried to force him to falsify his timecards and humiliated him in various ways. His subsequent performance evaluations were not positive, according to the plaintiff, and the agency ultimately suspended him and then terminated his employment in March 2015.
Upon filing his lawsuit, the plaintiff claimed that his employer and supervisor discriminated against him on the basis of his race and sex in violation of Title VII, and on the basis of his age and disability (gout), and then unlawfully retaliated against him for complaining about such mistreatment. The employer and supervisor countered that the plaintiff’s sex-discrimination claim was really a claim that they had discriminated against him on the basis of his sexual orientation. They asserted that sexual-orientation discrimination is not actionable under Title VII and that an individual supervisor cannot be held liable under that law.
Judge Wood agreed with the defendants on both points, citing the Seventh Circuit’s ruling in Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000). That appellate decision ruled that sexual-orientation harassment is “not an unlawful employment practice under Title VII.”
The plaintiff attempted to salvage his sex-discrimination claim by arguing that his employer actually mistreated him before the new chief discovered that he was gay. Additionally, he argued that his supervisor’s criticisms – that he was “too soft” or “not aggressive enough” – were more akin to “sex stereotyping,” which is unlawful under Title VII. Judge Wood rejected those arguments in light of the plaintiff’s express allegation that the new chief began harassing him “shortly” after she “found out that [he] was a homosexual.”
Likewise, Judge Wood noted that the plaintiff’s lawsuit “clearly allege[d] that he was subject to [sex-stereotyping] comments only after [his supervisor] learned of his sexual orientation.” Therefore, Judge Wood concluded that the plaintiff’s “complaints regarding discrimination due to sex stereotyping are more accurately described as complaints about discrimination on the basis of his sexual orientation.” She dismissed the plaintiff’s sex-discrimination claim on that basis.
Of course, this ruling does not mean that employers in Illinois may freely discriminate against or harass applicants or employees on the basis of their sexual orientation. On the contrary, sexual-orientation discrimination and harassment are unlawful employment practices in that state under the Illinois Human Rights Act (“IHRA”). Like Title VII, the IHRA sets forth a list of protected characteristics that includes sex, race, color and national origin, among others. Under both Title VII and the IHRA, employers may not treat applicants or employees less favorably than others on the basis of those protected characteristics. However, unlike Title VII, the IHRA also expressly mandates that sexual orientation is a protected characteristic.
Therefore, the takeaway is that Illinois employers should not misinterpret from this ruling as a license to treat gay or lesbian applicants or employees differently than others on the basis of their sexual orientation. It is very likely that attorneys representing gay or lesbian plaintiffs who claim their clients have suffered sexual-orientation discrimination or harassment may allege both violations of Title VII and the IHRA. Although federal courts in Illinois might dismiss such claims under Title VII, they could allow a plaintiff to maintain such a claim under the IHRA.