Employment Law

• Date: 01 July 2017
• Published date: 01 July 2017
• DOI: http://doi.org/10.1002/nba.30339

10

JULY 2017NONPROFIT BUSINESS ADVISOR

© 2017 Wiley Periodicals, Inc., A Wiley Company • All rights reserved

DOI: 10.1002/nba

Employment Law

Here’s a look at several recent notable lawsuits involving nonprots. Nonprots should regularly review

employment laws and their compliance efforts to avert similar issues.

Title VII

Harassed homosexual policeman gets

no relief

Memphis Police Ofcer Davin Clemons sued the

city, claiming discrimination and harassment against

him in violation of Title VII. The discriminatory

actions alleged by Clemons included: (1) being

told that superiors did not approve of his lifestyle,

(2) employees mocking him because of his sexual

orientation, (3) co-workers making negative com-

ments about his engagement to a man, (4) disparate

treatment against him compared to heterosexual

ofcers and (5) inconsistent application of depart-

ment policies toward him.

The city led a motion to dismiss, arguing that

Title VII only provided relief to someone who was

being discriminated against for failing to conform to

a gender norm, which was a different concept than

sexual orientation discrimination. It contended that

the only example of nonconformance in the Clem-

ons complaint was his sexual orientation, and there

were no allegations that he had been the subject of

discrimination because either his appearance or his

mannerisms were not masculine.

Clemons responded that he had pleaded suf-

cient facts to support a claim of sex discrimination

under Title VII due to both gender stereotyping

and gender nonconforming conduct, citing a recent

declaration from the Equal Employment Opportu-

nity Commission.

District Judge Jon McCalla said the prohibition

against gender discrimination in Title VII had been

extended by the courts to situations where employees

had failed to conform to stereotypical gender norms.

But he emphasized that those protected anomalies

were required to be characteristics that were readily

demonstrable in the workplace, such as an employ-

ee’s manner of walking and talking, what attire the

employee wore to work and the employee’s hairstyle.

The judge said the 6th Circuit had dismissed suits

that complained only about harassment based on

perceived homosexuality.

Judge McCalla acknowledged that the EEOC

had recently declared that harassment on the basis

of sexual orientation necessarily stated a claim of

“discrimination on the basis of sex” within the

protection of Title VII. However, he said the 6th

Circuit had yet to comment on what effect the EEOC

pronouncement might have on its rulings. He ruled

that until either the 6th Circuit or the U.S. Supreme

Court provided further guidance on that issue, he

was bound by precedent, which declared that a Title

VII suit for sex discrimination could not be based

on sexual orientation.

The judge characterized the allegations of the

Clemons complaint as depicting that homosexuality

was the root of the harassment he had experienced.

He explained that Clemons had alleged that the

mistreatment he endured was because of sexual

stereotypes, and either a belief that he was not suf-

ciently masculine or a conviction that men should

not date other men.

EMPLOYER WINS ➔ Judge McCalla dismissed

the suit because the complaint did not allege an

observable, nonconforming gender characteristic

that subjected him to discrimination, and because

sexual orientation was not a basis for relief in the

6th Circuit.

[Clemons v. City of Memphis, Tennessee, U.S.

District Court for the Western District of Tennessee,

No. 16-cv-02333, 12/28/16].

Gender Discrimination

Offended reghter gets no satisfaction

In October 2013, Fairfax County Firefighter

Magaly Hernandez was transferred to a station at

which Jon Bruley was the captain.

In 2016, she led a suit claiming violations of

Title VII, alleging that Bruley had over the years: (1)

placed his chin on her shoulder, (2) positioned his

body right up against her, (3) asked her for a hug,

(4) placed his arm on her, (5) said he wanted to see

her in a bathing suit, (5) snuck up behind her and

(6) made a comment to her about handling a “big

hose” that she interpreted as a lewd remark.

Hernandez also alleged that she had only recently

discovered that Bruley had been documenting her

activities around the station, including who she

talked to, who she hugged and what she did on