In a relatively insignificant ruling denying summary judgment, Ohio Judge James Gwin made a significant argument in favor of recognizing discrimination based on sexual orientation under Title VII’s protections against discrimination based on sex. Plaintiff Jason Koren is suing his former employer, the Ohio Bell Telephone Company, for unfair treatment because he is gay that ultimately led to his termination. Among his complaints was that his supervisor, Kim Miceli, refused to acknowledge that he had taken his husband’s surname when they married in Massachusetts, because she “did not recognize same-sex marriages.” Judge Gwin agreed that this was discrimination based on Koren’s sex:
Koren’s position is that changing his name upon marriage was a non-conforming “behavior” that supports his gender discrimination claim under a Price Waterhouse sex-stereotyping theory. Ohio Bell disagrees and attempts to frame Koren’s claims as a simple attempt “to bootstrap protection for sexual orientation into Title VII” as prohibited by Vickers.
The Court agrees with Koren: homosexual males do not “by definition, fail to conform to the traditional gender norms” by changing their surname upon marriage. And here, Koren chose to take his spouse’s surname—a “traditionally” feminine practice—and his co-workers and superiors observed that gender non-conformance when Koren requested to be called by his married name. Vickers does “not suggest that [a plaintiff’s] claim fails merely because he has been classified . . . as a homosexual. Rather, [the] claim fails [when the plaintiff] has failed to allege that he did not conform to traditional gender stereotypes in any observable way at work.”
Koren has alleged just such a failure to conform. And he says that Miceli “harbored ill-will” because he changed his name but that she would not have done so if a female employee had changed her name. Koren testified that Miceli refused to call him by his married name, that Miceli went out of her way to call him by his previous last name, and that Miceli informed him that she did not recognize same-sex marriages. And that ill-will, Koren says, resulted in seven unexcused absences and, ultimately, his termination. Accordingly, there is a “genuine dispute as to material fact[s],” and summary judgment is inappropriate on Koren’s sex-stereotype theory.
This is not a final ruling as to the merits of Koren’s case, but it’s still a worthwhile recognition of nondiscrimination protections under current law. Even though sexual orientation is not explicitly mentioned in Title VII, interpreting non-heterosexual orientations as a violation of sex stereotypes is an arguably fair interpretation of sexual identity. Indeed, Judge Gwin ruled similarly in a different case last year, arguing that the equal protection guaranteed by the Constitution is not automatically constrained by what is stipulated under the law. Sexual orientation is an invisible identity, which is why it is often characterized by the behaviors associated with it, but it makes sense to understand it as a natural variation of how one’s sex expresses itself.