Sex, not orientation, was basis of Title VII claim

A workplace discrimination lawsuit made by an openly gay female former deputy chief of the Bedford Police can go forward, a Lynchburg federal judge has ruled, finding that the claim was based on her sex, making a member of a protected class.

While U.S. District Judge Norman K. Moon wrestled with the issue of sexual orientation as the basis for a Title VII workplace discrimination claim, he ultimately decided that Carla B. Spencer did enough to claim discrimination based on her gender. Therefore, Moon said it was unnecessary to determine if Title VII protects people based on their sexual orientation.

However, according to an attorney whose firm represented Spencer, an extensive footnote in the opinion points the way for future Title VII claims based on sexual orientation.

“It is the correct reasoning for how the court could apply Title VII to these individuals,” said attorney Thomas E. Strelka of Roanoke whose firm represented Spencer. “Two district courts have now said that … Title VII would likely apply to these individuals. Neither court goes all the way and connects all the dots to the merits of the case, but we still get where we need to go.”

The opinion is Spencer v. Town of Bedford (VLW 018-3-473).

The lawsuit stems from claims that while working as a deputy chief of police for the Bedford Police in 2016, Spencer was regularly disrespected by coworkers because she is a gay woman. Spencer alleges that when she made complaints to her superior Chief Foreman, he ignored them and expressed his discomfort with “working with a gay female employee.” Additionally, she alleged lower pay and less preferential treatment as a result of her gender and sexual orientation.

Later, when she made a comment on the work performance of a subordinate, an administrative complaint was filed which alleged she “had disparaged many members of office personnel after drinking heavily” and an Internal Affairs Investigation was performed. Soon thereafter, she was confronted by Foreman in a meeting in which he additionally claimed she failed to complete work assignments and that she falsified documents. She denied all claims, citing evidence of her work performance, and she again reiterated her belief that she was being treated differently than others in her position.

Two days later she was put on administrative leave, before being fired.

In the opinion, Moon said while Spencer argued she is a member of a protected class based on her gender and sexual orientation, he found that her gender was enough to prove such membership.

The defendant relied heavily on the case of Wrightson v. Defendant, a decision from the 4^th U.S. Circuit Court of Appeals that states that “Title VII does not afford a cause of action for discrimination based upon sexual orientation,” Moon said. “For present purposes, it is unnecessary to determine whether Title VII prohibits discrimination based on sexual orientation because Plaintiff, as a woman who experienced discrimination based on her gender, sufficiently alleges membership in a protected class,” he wrote.

In the footnote, Moon goes deeper into the case law,without fully addressing its application to the Spencer case, by explaining that since the 4^th Circuit decision in Wrightson, several other federal courts of appeal have held the opposite. However, for now, he said the Supreme Court has not yet issued a definitive ruling on the matter.

“Ultimately, the court recognizes this is an unsettled question that has led to a circuit split and there are currently two petitions for writs of certiorari pending before the Supreme Court,” he wrote.

Moon found that Spencer adequately alleged disparate treatment, sex discrimination and retaliation under Title VII, but said she failed to meet the requirements necessary to prove disparate impact, or intentional infliction of emotional distress and negligent infliction of emotional distress, according to state law.

As a result, the case now enters the discovery phase. Strelka said that while he’s happy with the ruling, which falls short of its intended purpose of bringing a Title VII claim based on sexual orientation before the higher court, he hopes it can be a step toward this goal.

“This is a case in which an LGBTQ individual is allowed to proceed based upon her sex,” Strelka said. “That’s great, and should hopefully be a building block for other rulings.”

Defense attorneys Jeremy E. Carroll of Roanoke and D. Paul Holdsworth of Richmond did not respond to requests for comment by press time.

Strelka said that while it’s still early in the case, he’s optimistic about his side’s chances.

“This was a case where the defendant thought we couldn’t get this far based on the perceived limitations on Title VII,” he said. “The biggest hurdle in this case has just been passed.”