Sexual Orientation And The Courts: Whole Lotta Hand Wringin’ Goin’ On

Lately there’s been a whole lotta hand wringing and finger pointing in the federal courts over the issue of  sexual orientation and Title VII.   A federal appeals court in Chicago just ruled that it is still legal under federal law to fire employees based upon their sexual orientation, as did a federal judge in NYC in her opinion — both lamenting their decisions, however.

See my lengthy discussion of this issue on August 2nd.

And now comes to light an egregious case of sexual harassment in Illinois which, because the lower court was forced to follow existing precedent, has left the plaintiff without a remedy.  To lawyers this requirement to follow existing precedent is known as “stare decisis.”  The result may be cruel and unjust, but the law is the law.

What Can A Poor Judge Do?

The fingers on the wringing judicial hands are pointing at Congress, which is not likely to do anything about the issue, of course, and the Supreme Court, which, as politicized as it is, is clearly not going to do anything in the near future.

So what’s a poor federal judge to do, besides wring his/her hands or stomp his/her feet, and claim to be helpless to change anything?

Caricature, Man, Weak, Effort“Gee whiz – can’t do nuthin’!”

Don’t get me wrong:  stare decisis, the subject of my first class in law school, is the basis of the rule of law.  But law and justice are not the same thing.  When stare decisis is the sole given reason to perpetuate a longstanding injustice, maybe – just maybe – it’s time for someone on the bench to develop a spine and push back.  Someone has to be the first; simply claiming impotence and pointing a finger is no answer.

Case in point:

In Cicero, Illinois, a male high school painter was allegedly subjected to two years of daily acts of co-worker harassment which were so bad that the federal trial court called it “appalling” and “disgusting conduct.”  The Court reserved its decision while waiting for the federal appeals court in Chicago to rule (see above) whether  harassment of this kind, based upon plaintiff’s sexual orientation (or perceived orientation), was actionable.  The appeals court, of course, ruled that it was not – reluctantly.

“What can I do, man?  I know you suffered greatly but, like, we got this stare decisis thing. ”

And, alas, after the appeals court ruled, the trial court lamented that it had no authority to do anything — despite the “appalling” and “disgusting conduct” it said was alleged by plaintiff, because the court of appeals ruled that sexual orientation was not covered under Title VII.

Is there no one who can right this wrong?  The courts are powerless!!

BTW:  The “appalling” and “disgusting conduct” to which the Court said that plaintiff was allegedly subjected, and for which the court held that he had no remedy, included the following, according to the Cook County Record:

Daily insults, slurs and demeaning homophobic jokes, “using a range of homophobic taunts, slurs and other actions,” and the “broadcast of a demeaning ring tone, intended to mock gays, over school-owned walkie talkies each time [plaintiff] would check in on the radios.

“Repeated lude gestures and sexually suggestive speech, including from one male coworker, in particular, who allegedly ‘on a daily basis attempted to rear hump [plaintiff] in the cafeteria and/or engage in other sexually suggestive moves until [plaintiff] would push him away’” and who would regularly tell [plaintiff] to ‘suck it’ or ‘lick it.’”

under the thumb

“Draw[ing] penises and other graphic images on his time card, send[ing] him lewd, threatening and harassing text messages and emails,” and changing his Facebook profile to indicate “he was interested in ‘boys and men.’”

“Repeatedly soak[ing] him with water guns, shrink-wrapp[ing] his car and dropp[ing] water on him from buckets as he attempted to work.”

Additionally, plaintiff alleged that “school officials were aware of this behavior, as they either were present when it was happening, overheard it on the school-owned radios or were officially notified, repeatedly, by [him] of the continuing acts. Yet, [plaintiff] said they took no action to stop it.”

Sorry, fella: that’s precedent for ya!

Although the court of appeals called for a “bold” new look at whether Title VII includes sexual orientation, and purportedly gave the issue a “bold” new look – it ultimately simply stood back wringing its hands and concluded that it was nonetheless forced to uphold the longstanding (unjust) precedent.

Because of this ruling, plaintiff just had his Title VII case dismissed, by an equally hand wringing lower court.  The lower court judge dismissed the case “with lament,” according to the Cook County Record, because “basic jurisprudential principles compel a District Court’s adherence to its Court of Appeals’ precedential rulings.”

The Court said, essentially, that “the Man upstairs just ruled and I gotta yield!  Sorry fella!”

Man, Silhouette, Road Sign

However, despite caving to Lord Stare Decisis, the Court also said — significantly — that “Stare decisis is not however immutable — perhaps the most noteworthy example of our time has been the unanimous decision of the Supreme Court in Brown v. Bd. of Educ., 347 U.S. 483 (1954). But the Supreme Court’s overturning of the long-lived ‘separate but equal’ doctrine in that case was a matter of reversing course in a judicial reading of the Constitution — a matter quite different from altering the established judicial reading of a word contained in congressional legislation.”

Comparing this issue to the shameful “separate but equal”‘ doctrine — which existed since the 19th century but was reversed more than 60 years ago –  while claiming fealty to existing precedent?

Pressure, Suppression, Stress

Yes, “stare decisis is not immutable” — but somebody has to be the first to do something besides merely lamenting.

Takeaway: Whole lotta hand wringin’ goin’ on – and nothin’ changes!  Forget about the poor plaintiff — what about the poor, helpless courts??

And when is Congress or the Supreme Court going to give us some direction?




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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]