One Courageous Judge Contradicts Hand Wringing Appeals Courts On Sexual Orientation

A truly historic decision was rendered today by a heroic federal judge.


First, the background.

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.  I commented thusly back on August 8th.  I attributed to these courts my caustic quote:

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


A federal appeals court in Chicago had 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.

What had the court found what it said was so “appalling?”  I wrote:

“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.’”

“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.”

I concluded — “Is there no one who can right this wrong?”

“Somebody has to be the first to do something besides merely lamenting.”

But wait!  Hold on a sec!  Someone was indeed first!!

From Pittsburgh comes news that – wait for this! – a federal trial judge has just upheld a suit filed by the EEOC – the first of its kind — holding that sexual orientation discrimination is indeed a form of sex discrimination prohibited by Title VII.

Where the appeals courts whimpered that they were without power or authority to issue a similar ruling (no authority, it can be argued – but certainly the power is there), a lone judge has broken through with what truly is a historic decision – no less historic in the employment discrimination sphere than Brown was in the equal racial opportunity sphere.

The EEOC had alleged that a gay male employee was harassed because of his sexual orientation and was forced to quit.  The company moved to dismiss, claiming that sexual orientation was not covered by Title VII, and was not included in sexual or gender discrimination.


Federal Judge Cathy Bissoon – remember the name –  denied the motion, holding that sexual orientation discrimination is a type of discrimination “because of sex” — barred by Title VII.

She found that, as reported by the EEOC:

“Title VII’s ban on sex discrimination includes adverse treatment of workers based on ‘sex stereotypes,’ i.e. pre-conceived ideas of how a man or a woman should act or think. The federal court stated, ‘There is no more obvious form of sex stereo­typing than making a determination that a person should conform to heterosexuality.’ The federal court then concluded, ‘That someone can be subjected to a barrage of insults, humili­ation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.’”

Takeaway: I said before:  “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?”

And lo – a single federal judge has done what neither the Supreme Court nor, God forbid, the Congress, has done — which is — the right thing!

To the appeals courts which have been wringing their hands and declaring their helplessness in the face of injustice:





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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]