January 20, 2016 at 6:51 pm EST | by Chris Johnson
Bucking trend, court denies anti-gay bias is gender discrimination

hate crime, gay news, Washington Blade

A federal judge has denied sexual orientation discrimination amounts to gender bias under current law.

Bucking the recent trend in the courts, a federal judge on Wednesday dismissed claims workplace harassment based on sexual orientation violates current civil rights law. The news was first reported by the Chicago Daily Law Bulletin.

In the seven-page decision by U.S. District Judge Andrea Wood, an Obama appointee, writes “sexual orientation is not a protected class under Title VII,” which is contrary to legal interpretations the prohibition of gender discrimination under Title VII of the Civil Rights of 1964 makes unlawful workplace bias based on sexual orientation.

David Igasaki, a former staff attorney for the medical prosecutions unit at the Illinois Department of Financial & Professional Regulations, filed the lawsuit last year after he allegedly experienced anti-gay discrimination when his boss learned he was gay.

“Thus, as alleged, Igasaki’s complaints regarding discrimination due to sex stereotyping are more accurately described as complaints about discrimination on the basis of his sexual orientation,” Wood writes. “Accordingly, Igasaki has failed to state a claim for sex discrimination and that claim is dismissed without prejudice.”

Wood cites as precedent a case decided in 2000 by the U.S. Seventh Circuit Court of Appeals, Gary Hamner v. St. Vincent Hospital & Health Care Center, which determined anti-gay discrimination isn’t covered under Title VII.

The judge says Igasaki can refile if he can do so consistent with the obligations of Federal Rule of Civil Procedure 11, which prohibits frivolous claims. Presumably, a lawsuit alleging discrimination based on non-conformity to gender stereotypes would be able to proceed.

According to the decision, Igasaki initially received a positive review from his supervisor, Chief of Medical Prosecutions Laura Forester, before she learned he was gay.

Afterward, she allegedly began to harass him and his next review, in his words, was “extremely bad.” Forester allegedly “set impossible deadlines for Igasaki, humiliated him, gave him a heavy caseload and assigned him to a small and unaccommodating workstation,” the decision says.

The supervisor allegedly singled out Igasaki for lengthy and probing case reviews, selectively enforced a “no work late policy” against him, forced him to take involuntary leave after a bedbug issue that he says originated in his work office and tried to compel him to falsify his timecards.

After filing charges, Igasaki’s work environment allegedly became even more hostile and he continued to receive poor evaluations. Igasaki, who suffered from gout, received a partial denial of his request for reasonable accommodations for his condition. In March 2015, Igasaki was ultimately terminated.

The state of Illinois made the case in the lawsuit Igasaki’s lawsuit must be dismissed because sexual orientation is not a protected class under Title VII, citing precedent in the Seventh Circuit.

“Plaintiff’s sex discrimination claim should be dismissed as sexual orientation is not a protected class and plaintiff fails to plead a valid sex stereotyping claim,” reads by a brief from the state signed by Madigan and Assistant Attorney General Adam Eisenstein.

It’s noteworthy that was the position of the state because Illinois Attorney General Lisa Madigan is considered an LGBT rights supporter.

Annie Thompson, a Madigan spokesperson, defended the attorney general’s action in a statement to the Washington Blade.

“Our arguments and the court’s order were completely controlled by the existing case law from the 7th Circuit Court,” Thompson said. “The court dismissed the case without prejudice. As a result, based on the court’s order, the plaintiff can now revise and re-file his complaint if he chooses to do so.”

But Igasaki made other claims in the lawsuit on the basis his employer discriminated against him on the basis of race, which is prohibited under Title VII, disability, which is prohibited under the Americans with Disabilities Act, and age discrimination, which is prohibited under the Age Discrimination in Employment Act. The judge hasn’t yet appeared to make a decision on those claims.

The judge also dismisses all claims against Forester herself, saying under Title VII and the Americans with Disabilities Act, only an employer can be sued, not an individual. Wood also dismisses a claim based on the legal theory of respondeat superior liability.

The decision says Igasaki also filed a complaint that’s pending before the Illinois Department of Human Rights. Under state law, discrimination on the basis of sexual orientation is explicitly prohibited. The Blade couldn’t immediately determine the status of that complaint.

Caryn Shaw, an attorney with the Chicago-based Shaw Legal Services representing Igasaki, told the Blade the legal firm would likely refile the case.

“We are reviewing the Court’s opinion,” Shaw said. “The Court has allowed us to amend and resubmit the sex discrimination count, which we will likely do. We feel strongly about the sex discrimination count. We also feel strongly about the remaining counts for age discrimination, race discrimination, and retaliation, which were not dismissed.”

The court throws out the claim based on gender discrimination even though the U.S. Equal Employment Opportunity Commission, the agency charged with enforcing with federal employment civil rights law, affirmed last year in the case of David Baldwin v. Department that sexual orientation discrimination is covered under the gender provisions of Title VII.

Tico Almeida, president of Freedom to Work, said the case isn’t over, noting the judge grants Igasaki the opportunity to file a new complaint under sex stereotyping claims. Almeida also pointed out another case, Hively vs. Ivy Tech, is pending before the Seventh Circuit and could change precedent.

“At oral argument, a Republican-appointed Seventh Circuit Judge Ilana Rovner said ‘Why would Title VII protect the white woman married to an African-American man, but not a woman married to another woman?'” Almeida added. “That point is exactly right, and we’re hopeful that the Seventh Circuit will give deference the EEOC’s Baldwin ruling and join the four federal courts and counting that have recently ruled that sexual orientation discrimination is a form of sex discrimination already banned by the Civil Rights Act.”

Sarah Warbelow, legal director for the Human Rights Campaign, said the court decision demonstrates the need to pass the Equality Act, comprehensive non-discrimination legislation pending before Congress that explicitly bars anti-LGBT discrimination in all areas of civil rights law.

“We are disappointed that the court failed to follow the excellent legal reasoning provided by the EEOC as to why sexual orientation discrimination is a form of sex discrimination,” Warbelow said. “This decision underscores the need for the Equality Act – legislation that provides clear, permanent protections from discrimination on the basis of sexual orientation and gender identity.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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