In the case of Gilbert v. Country Music Association, Inc., 112 Fep. Cases 1711, Case No. 09-6398 (August 2, 2011), the U.S. Court of Appeals for the Sixth Circuit affirmed a previous dismissal of a plaintiff’s claim for discrimination based upon his open homosexuality. The Plaintiff, Marty Gilbert, had acquired a job through his local union to work at the 2007 County Music Association (“CMA”) Awards. While working on the show, he was harassed by a coworker who not only referred to him in several derogatory ways, but also threatened to stab him. Unfortunately, these were not empty threats. The plaintiff’s coworker was facing criminal charges for having actually stabbed several other homosexuals in an incident in Atlanta, Georgia. After complaining about his coworker, Mr. Gilbert alleged that he was denied further opportunities to work at the show. He then filed suit in federal court against the CMA and his union under both Title VII and Tennessee state discriminatory laws.
In affirming the dismissal of his civil rights claim, the Sixth Circuit summarized several prior rulings under Title VII emphasizing that homosexuality is not a protected class. The Court, however, did recognize that there are some circumstances where discrimination based upon sex stereotyping is prohibited under Title VII. In order to pursue a sex stereotyping claim, a plaintiff must show discrimination based on gender non-conforming behavior observed at work or affecting his or her job performance. This could include comments on appearance or mannerisms. Mr. Gilbert complained about the fact that he was called a “faggot” and had been threatened physically, but the Court found this insufficient to establish a sex stereotyping claim.
Therefore, at least in the Sixth Circuit, openly discriminatory and even aggressive and intimidating conduct towards homosexuals will not support a claim under Title VII. Plaintiffs pursuing these types of claims and their counsel will have to provide much more significant and detailed evidence of sex stereotyping in order to seek relief.