Title VII gay bias claim goes forward

A June decision by the U.S. Supreme Court has opened courthouse doors for a lawsuit filed by a Staunton man who says he was fired for being homosexual.

The federal justices ruled June 15 that Title VII covers discrimination on the basis of sexual orientation. Following that decision, a judge in Harrisonburg federal court on Sept. 11 allowed claims of sexual orientation and gender stereotype discrimination to proceed against a Virginia-based insurance company, denying a motion to dismiss.

U.S. District Judge Michael F. Urbanski rejected a claim of hostile work environment in the case, however.

The employer’s attorney said the Urbanski decision provides guidance in the new field of federal job bias claims based on sexual orientation. LGBTQ advocates welcomed the decision, as well as the June U.S. Supreme Court ruling and the recent passage of the Virginia Values Act.

The case is Sarco v. 5 Star Financial LLC (VLW 020-3-466).

Performance cited in firing

Joshua Sarco is a homosexual Staunton resident who worked for a life insurance company primarily serving military families, according to his amended complaint. Armed Forces Benefit Assoc. is headquartered in Alexandria and has a small office in Staunton. Sarco was hired in 2015 as a customer service representative.

“Sarco is confident each employee in the Staunton AFBA office knew he was a homosexual due to his openness about his orientation, as well as his effeminate mannerisms and clothing, long hair, flamboyant apparel, and a high-pitched voice which resulted in some clients presuming he was female on the phone,” the amended complaint read.

Two associate vice presidents in the office “in myriad ways denigrated and singled Sarco out” based on his sexual orientation and nonconformity with normative stereotypes, the lawsuit says. Sarco claims these supervisors applied different rules to him, including prohibitions on opening his office window and receiving personal mail. He claims the supervisors required that his customer service forms be monitored, despite his long tenure and a good work record.

Sarco contends his superiors believed that a homosexual man could not do the job of a customer service representative serving the military community and used a pretext of performance lapses to fire him.

He was terminated in 2019 after being told his performance was “not even close to being good enough,” as Urbanski summarized the allegation. But Sarco had the second highest call answer rate in the company, according to his lawyer, Nicholas A. Hurston of Staunton.

“He was good at his job. There was no reason for him to be fired at all,” Hurston said Sept. 15.

Motion to dismiss

AFBA, represented by Joan C. McKenna of Richmond, asked Urbanski to dismiss Sarco’s suit in its entirety, saying the 4^th U.S. Circuit Court of Appeals had declined to extend Title VII to sexual orientation bias. The motion was filed before the U.S. Supreme Court spoke on the issue.

Moreover, the complaint was light on facts to support its claims, McKenna argued in a brief.

“Plaintiff continues to rely heavily on labels and conclusions to support his theory of discrimination without providing any factual assertions to support such a theory,” McKenna wrote.

The parties argued their positions on April 14, but Urbanski determined to wait to see what the federal justices would say in the case of Bostock v. Clayton County. On June 15, the Supreme Court concluded that Title VII encompasses discrimination on the basis of sexual orientation.

That ruling, and Urbanski’s reading of the factual allegations, allowed the case to proceed on two theories of liability: gender stereotype nonconformity discrimination and sexual orientation discrimination, the judge said.

Sarco had established a “plausible nexus” between his treatment at work and his nonconforming behavior and sexual orientation, Urbanski said. Sarco alleged “several iterations of conduct that could be viewed as sex discrimination as well as several instances of adverse employment action,” the judge wrote.

Urbanski also said a community backdrop of pervasive societal stereotypes could be taken into account in finding the nexus between bias and adverse employment action.

While the company contended Sarco was fired for unsatisfactory performance, Urbanski said he was bound to accept as true Sarco’s claim that he improved his performance to the point that he held the second highest calls-answered rate at the company.

Urbanski rejected a failure-to-exhaust defense, but he dismissed Sarco’s hostile work environment claim. The allegations did not meet the “high bar” of objective hostility, the judge said.

“Rude and disrespectful comments resting on gender stereotypes that do not involve ‘frequent and pervasive slurs and insults based on his sex, culminating in threats of violence’ are insufficient to constitute an actionable claim,” Urbanski wrote.

World changed

McKenna said her motion to dismiss was “fully supported” by Fourth Circuit law when it was filed.

“The world of Title VII completely changed on June 15 with the Bostock decision, after our motion was filed,” McKenna said in an email.

“Judge Urbanski’s thoughtful and thorough decision provides excellent guidance for other litigants who will now be pursuing and defending claims of sexual orientation discrimination under Title VII in Virginia’s federal courts,” McKenna added.

She denied that AFBA committed any discriminatory act toward Sarco.

Advocates see new atmosphere

Advocates for LGBTQ rights put the Sarco decision among other recent developments signaling new recognition of employer liability for discrimination.

“With the passage of the Virginia Values Act in the General Assembly this spring, along with the Bostock decision by the Supreme Court, the legal protections for LGBTQ people have taken a huge step forward,” said Emily Sproul, executive director of the Shenandoah LGBTQ Center.

The Bostock and Sarco rulings “should give LGBTQ Virginians hope that they can live their lives free of discrimination on the basis of their sexual orientation and gender identity and expression,” Sproul said.

Vee Lamneck, executive director of Equality Virginia said Urbanski’s ruling is a “great example” of why the Bostock decision is so important.

“We are glad that Mr. Sarco is able to have his case heard in open court,” Lamneck said in an email.

The ACLU also welcomed the ruling.

“We are glad to see a Virginia federal court readily embracing this precedent, and hope to see state courts do the same under Virginia’s state-level protections against discrimination in the recently enacted Virginia Values Act,” said attorney Nicole Tortoriello at the ACLU of Virginia.