In a recent decision of the Third Circuit, we are reminded that millions of federal civilian employees still have no protections against discrimination on account of gender orientation or identity.
In Pagan v. Gonzales, No. 10-4274 (3d Cir. June 9, 2011), the U.S. Court of Appeals for the Third Circuit determined that a plaintiff employee, who worked in the U.S. Department of Justice and claimed she was discriminated against because she is gay, failed to adequately plead a claim of gender discrimination under Title VII. While the complaint asserted a claim of sexual orientation discrimination, such a claim is not legally cognizable under the federal anti-discrimination law.
Although a claim for gender discrimination on the basis of gender stereotyping exists under Title VII, the district court had held that Ms. Pagan failed to assert the harassment was based on "her non-conformity with gender norms instead of her sexual orientation" and would "not permit [Ms. Pagan] to bootstrap protection for sexual orientation into Title VII by re-packaging her sexual orientation claim as gender stereotyping." The Third Circuit affirmed the district court's opinion citing "the absence of any evidence to show that the discrimination was based on Pagan's acting in a masculine manner" to support a claim of gender stereotyping as opposed to sexual orientation.
The Employment Non-Discrimination Act, a bill that would enact an explicit federal ban on employment discrimination based on sexual orientation or gender identity, and may have made Ms. Pagan's claims of discrimination cognizable, is still pending in Congress. Most recently, U.S. Senator Kay Hagan of North Caroling announced that she will add her name as a co-sponsor, bringing the number of Senate sponsors to 41.