Pennsylvania Record

Tuesday, October 22, 2019

Court: Being perceived as gay not a claim for sex discrimination


By Tomas Kassahun | Feb 13, 2019

PHILADELPHIA - The U.S. District Court for the Eastern District of Pennsylvania has dismissed a sexual discrimination lawsuit against the Philadelphia Housing Authority, saying a former employee who filed the lawsuit on the basis of being perceived as gay didn’t make a claim for sex discrimination. 

In the ruling on Jan. 24, U.S. District Judge Gerald McHugh said the suit is dismissed because the U.S. Court of Appeals for the Third Circuit has held that perceived sexual orientation does not form the basis for a claim of sex discrimination under Title VII. 

“Plaintiff has framed his hostile work environment claim exclusively as discrimination on the basis of perceived sexual orientation,” the opinion stated. “Such a claim is not currently recognized within the 3rd Circuit.”

According to the opinion, Shaun Guess worked as a Family Self Sufficiency Coordinator at the Philadelphia Housing Authority and alleged that he was paid less than three women in a similar position. Guess was reportedly asked to perform stereotypically male tasks and the supervisor called him a homophobic slur when he refused to perform a task, the opinion stated.

According to the opinion, Guess filed a charge of discrimination with the Equal Employment Opportunity Commission and marked “sex” as the form of discrimination and noted the latest date of discrimination as July 27, 2017.

The lawsuit, cited by the court, noted that “Guess was routinely assigned to more manual labor and tasks, despite other female FSS Coordinators being ready, willing and available for those same labor intensive and less desirable tasks.” 

McHugh said the defendant challenged Count I for failure to state a claim upon which relief can be granted under Title VII.

The district court said the Housing Authority argues that “plaintiff’s hostile work environment claim under Title VII fails because he alleges only discrimination on the basis of sexual orientation, which cannot constitute discrimination ‘because of sex’ for purposes of Title VII as a matter of law.”

According to the opinion, the court agrees with the defendant on that argument because the Third Circuit has explicitly endorsed that view. 

“I must agree with defendant that plaintiff’s First Amended Complaint has failed to state a viable hostile work environment claim,” the opinion stated. “The 3rd Circuit has held that discrimination because of sexual orientation is not discrimination because of sex for Title VII purposes.”

McHugh said Guess has expressly alleged a claim of “Hostile Work Environment/Harassment Based on Perceived Sexual Orientation.”

“The First Amended Complaint does not identify an alternate basis for the hostile work environment sex discrimination claim,” the opinion said. “I must, therefore, grant the Motion to Dismiss Count I.”

According to the opinion, Guess opposed the dismissal on the ground that he has set forth a claim for gender stereotyping.

“He is correct as to the controlling law, but that is not how the complaint is formulated,” the opinion stated. “As to the law, although the 3rd Circuit does not view Title VII sex discrimination as encompassing discrimination on the basis of sexual orientation, it does recognize gender stereotyping claims as a form of discrimination because of sex.” 

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