Connect with us

Local

U.S. Attorney challenges use of civil rights law

Government defends Library of Congress in firing of gay employee

Published

on

Peter TerVeer, gay news, gay politics dc

Peter TerVeer (Blade photo by Michael Key)

The United States Attorney for the District of Columbia filed court papers on Dec. 17 arguing that a gay man, who sued the Library of Congress for firing him because of his sexual orientation, failed to show heā€™s entitled to protection under Title VII of the U.S. Civil Rights Act of 1964.

The court filing by U.S. Attorney Ronald C. Machen Jr., who was appointed by President Obama, places the Obama administration in the awkward position of opposing a gay discrimination claim under Title VII.

In a lawsuit filed against the Library of Congress in August 2012, former management analyst Peter TerVeer, 30, says he was fired from his job after being harassed and humiliated for more than a year by a supervisor who repeatedly quoted biblical passages condemning homosexuality.

The lawsuit charges that although TerVeer was targeted because heā€™s gay, he suffered employment discrimination and harassment based on his gender, gender stereotyping and his religious beliefs, which he says didnā€™t conform to those of supervisor John Mech.

Title VII of the famed 1964 Civil Rights Act bans discrimination based on race, religion, ethnicity, gender and, according to recent court rulings, gender identity, but not sexual orientation by itself.

According to the lawsuit, TerVeer and Mech had a cordial working relationship from the time TerVeer was hired in February 2008 as a management analyst in the libraryā€™s Auditing Division. It says TerVeer received high performance ratings and two promotions between 2008 and 2010.

The lawsuit says Mech allegedly became hostile and unfairly critical of TerVeerā€™s work performance and created an unbearably hostile work environment after Mech learned TerVeer was gay.

The governmentā€™s filing of a motion to dismiss the case on legal and procedural grounds comes at a time when gay rights attorneys are seeking to persuade courts to treat anti-gay discrimination as a form of sex discrimination protected under Title VII.

ā€œWe believe that the allegations in the complaint are insufficient to substantiate a Title VII claim,ā€ said Charles Miller, a spokesperson for the Justice Departmentā€™s Civil Division.

Miller pointed to an April 2012 ruling by the Library of Congressā€™s in-house equal employment opportunity division, which investigated TerVeerā€™s allegations of discrimination and harassment and dismissed an in-houseĀ complaint he filed in September 2011 on grounds that the allegations could not be substantiated.

ā€œThe Executive Branch is of course opposed to discrimination on the basis of sexual orientation, and this filing does not reflect any contrary policy,ā€ Miller told the Blade.

But Christopher Brown of the D.C. law firm Ackerman Brown, which is representing TerVeer, said the governmentā€™s motion to dismiss the case ā€œrelies on legal precedent that excludes LGBT employees from protection under Title VII.ā€

Brown declined to comment further on the governmentā€™s arguments, saying TerVeerā€™s legal team prefers not to comment in detail on pending litigation.

Greg Nevins, supervising attorney for the gay litigation group Lambda Legal Defense and Education Fund, which is monitoring the TerVeer case, said the governmentā€™s motion to dismiss appears to be arguing that TerVeer did not present sufficient evidence to show that his supervisor targeted him for discrimination because TerVeer displayed mannerisms or behavior of a stereotypical gay man, which some might view as being effeminate.

ā€œI think what the U.S. Attorney is saying here is a masculine gay man or a feminine lesbian would not be covered under Title VII,ā€ Nevins said. ā€œSome court rulings have essentially said Title VII does not apply to sexual orientation.ā€

In a landmark ruling last April, the U.S. Equal Employment Opportunity Commission declared that transgender people are protected against job discrimination under Title VII because bias against their gender identity is equivalent to sex discrimination. The EEOC ruling followed several appeals court decisions holding that transgender people were protected under Title VII.

Lambda Legal and other LGBT advocacy organizations say they hope to persuade courts that gay men and lesbians enjoy Title VII protections. They argue that sexual orientation discrimination is also linked to gender role stereotyping and bias, regardless of whether the victim is perceived as masculine or feminine.

TerVeerā€™s lawsuit says he also was targeted for retaliation after he filedĀ his discrimination complaint with the libraryā€™s in-house EEO office, which is known as the Office of Opportunity, Inclusiveness and Compliance.

ā€œPlaintiffā€™s discrimination and retaliation claims fall short,ā€ Machen and two other government attorneys argue in their Dec. 17 motion seeking to dismiss the case, which was filed in U.S. District Court for the District of Columbia.

ā€œPlaintiff alleges that he was subject to harassment after his employer learned that he was gay, and he presents his claim as one of non-conformity with sex stereotypes,ā€ the motion to dismiss says. ā€œBut the detailed allegations in the complaint do not provide what courts have held is required to show that sex stereotyping was the cause of his employerā€™s actions.ā€

The motion to dismiss adds, ā€œ[C]ourts have generally required plaintiffs to set forth specific allegations regarding the particular ways in which an employee failed to conform to such stereotypes ā€” generally relating to an employeeā€™s behavior, demeanor or appearance in the workplace ā€” and allegations to support the claim that this non-conformity negatively influenced the employerā€™s decision ā€¦ In this case, however, plaintiff fails to offer anything more than the conclusory statement that, as a result of his sexual orientation, ā€˜he did not conform to the defendantā€™s gender stereotypes associated with men under Mechā€™s supervision.ā€™ā€

One civil rights attorney familiar with the case, who spoke on condition of anonymity, said the U.S. Attorneyā€™s office was fulfilling its role in defending its client ā€” the Library of Congress ā€” and should not be faulted for arguing against TerVeerā€™s attempt to invoke protection from Title VII.

ā€œThe governmentā€™s argument that the complainant fails to allege sufficient facts to state a claim ā€¦ are typical argumentsĀ that theyā€™d make equally if the plaintiff were female or black rather than gay,ā€ the attorney said.

The governmentā€™s motion to dismiss the case is based mostly on procedural and legal grounds rather than on the merits of TerVeerā€™s specific allegations of discrimination and retaliation.

The governmentā€™s motion cites legal and procedural grounds to seek the dismissal of a separate claim in the lawsuit that the firing violated TerVeerā€™s Fifth Amendment constitutional right to due process and equal protection under the law.

In addition, it cites procedural grounds to call on the court to dismiss separate claims in the lawsuit that the library violated the Library of Congress Act, which bans discrimination based on factors unrelated to an employeeā€™s ability to perform his or her job; and an internal library policy banning sexual orientation discrimination.

Library investigation finds no substantiation of discrimination

The motion to dismiss releases publicly for the first time the April 26, 2012 ruling by the libraryā€™s Office of Opportunity, Inclusiveness and Compliance (OIC) that rejects TerVeerā€™s allegations on grounds that they could not be substantiated or proven.

The 14-page ruling by the OIC, which was filed in court by the U.S. Attorneyā€™s office as ā€œExhibit D,ā€ was based on an in-house library investigation into a discrimination complaint filed by TerVeer on Nov. 9, 2011, according to OIC acting supervisor Vicki Magnus.

Magnus discusses the findings in an April 26 letter to Brown, TerVeerā€™s attorney, which the U.S. Attorneyā€™s office submitted in court as part of Exhibit D.

ā€œBased on the available evidence, the Office of Opportunity, Inclusiveness and Compliance (OIC) does not find sufficient evidence to support Complainantā€™s allegations that he was discriminated against based on religion, sex, and reprisal, and that he was subjected to sexual harassment and a hostile work environment in his meetings with supervisors regarding performance and in actions taken by supervisors regarding his performance,ā€ Magnus said in her letter.

In what potentially could be damaging to TerVeerā€™s lawsuit, Magnus notes that the OIC investigation into TerVeerā€™s discrimination and retaliation complaint included interviews of and testimony by five of TerVeerā€™s co-workers. Each of the five testified that they personally observed less than satisfactory work performance by TerVeer, according to the OIC ruling.

In his complaint, TerVeer accuses his immediate supervisor, John Mech, and a higher level supervisor, Nicholas Christopher, of giving him a lower job performance rating based on anti-gay bias.

The five co-workers, ā€œeach of whom personally observed complainantā€™s performance, fully support the reasons presented by management justifying their decision to issue complainant poor performance ratings and to deny complainant a [performance based salary increase].ā€

Brown, TerVeerā€™s attorney, declined to comment on the OIC ruling or its potential impact on the lawsuit.

The libraryā€™s official reason for firing TerVeer was his failure to report to work after a leave of absence he requested and received permission to take had expired. TerVeer told reporters in a news conference in April that his doctor and therapist urged him to take a leave from work after the hostile work environment he said Mech created caused him to suffer severe emotional distress.

He said the library refused to grant his request to be transferred to another office under another supervisor, making it impossible for him to return to work.

Advertisement
FUND LGBTQ JOURNALISM
SIGN UP FOR E-BLAST

Virginia

Miyares joins efforts to fight Title IX changes

Republican Va. AG part of multi-state effort

Published

on

Virginia Gov. Glenn Youngkin listens as Attorney General Jason Miyares addresses an audience at a legislative signing ceremony in the Virginia Capitol on April 5, 2024. (Photo courtesy of Miyaresā€™s office)

BY NATHANIEL CLINE | Virginia Attorney General Jason Miyares has joined a multi-state effort to stop new Title IX rules from going into effect. 

The list of new rules designed to protect victims of campus sexual assaults and the rights of LGBTQ students has come under attack by Republican attorneys general in several states.

Miyares called the changes a ā€œdangerous overhaulā€ of Title IX, and said the new rules would negatively impact students, families and schools in the commonwealth. The ruling also comes after Gov. Glenn Youngkinā€™s administration overhauled the commonwealthā€™s transgender student policies.

ā€œThe Biden administrationā€™s unlawful rule would jeopardize half a century of landmark protections for women, forcing the administrationā€™s social agenda onto the states by holding federal funding hostage,ā€ Miyares said in a statement. ā€œThey are avoiding Congress and the constitutional process because they know it will not pass. We cannot roll back Title IX in the name of false equity.ā€

Virginia Attorney General Jason Miyares at the Virginia State Capitol on Jan. 10, 2024. (Photo by Nathaniel Cline/Virginia Mercury)

Attorney generals from Tennessee, Indiana, Kentucky, Ohio, and West Virginia have also signed onto the suit, which was filed in Tennessee. Separate lawsuits have been filed in other states, including Louisiana and Texas.

Title IX, which has undergone several transformations based on the political party in office, was created to address womenā€™s rights and prohibits any federally funded school or education program from discriminating against any student based on sex since it was established in 1972. 

The Department of Education said some differences compared to the previous version developed under the Trump administration, include protections against all sex-based harassment and discrimination, prohibits schools from sharing personal information, and supports students and families.Ā 

Narissa Rahaman, executive director for Equality Virginia, said in a statement that the rule prevents opponents from weakening ā€œcrucialā€ civil rights protections including for LGBTQ students by ensuring that pregnant and parenting students have a right to equal education opportunities, protecting student survivors and guaranteeing the rights of LGBTQ students to come to school as themselves without fear of harassment or discrimination.

ā€œStudents across races, places, and genders prove every day that they can do great things, especially when there are strong Title IX protections in place, which is why the Biden administrationā€™s updates to the Title IX rules are essential to ensure every student can thrive at school,ā€ said Rahaman.

The new rule is slated to take effect on Aug. 1 and will apply to complaints of alleged conduct that occurs on or after that date, according to the Department of Education. 

Protections

While the ruling protects students and employees from all sex-based harassment and discrimination, it will also impact LGBTQ students and employees, including providing complete protection from sex-based harassment, and prohibiting schools from sharing personal information.

Schools must act ā€œpromptly and effectivelyā€ to protect and treat all students and staff who make complaints ā€œequitably.ā€ Schools must also provide support measures to complainants and respondents, and act to end any sex discrimination in their programs and prevent any recurrence.

The rule further clarifies the definition of ā€œsex-based harassment,ā€ which means to treat someone unfairly because of their gender; and the scope of sex discrimination, including schoolsā€™ obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

The federal agency said the changes will empower and support students and families by requiring schools to disclose their nondiscrimination policies and procedures to all students, employees, and other participants in their education programs so that students and families understand their rights.  

The final rule also protects against retaliation for students, employees, and others who exercise their Title IX rights, and supports the rights of parents and guardians to act on behalf of their elementary school and secondary school children. 

The rule also protects student privacy by prohibiting schools from disclosing personally identifiable information with limited exceptions, which is something the Youngkin administration has opposed. 

Advocates say one of the rights students should have is the power to decide who finds out about their transgender status, to protect them from being bullied or harassed.

Virginia policies

In 2021, the first model policies for trans students were designed under former Gov. Ralph Northam to provide school officials guidance on the treatment of trans and nonbinary students and to protect the privacy and rights of these students. 

However, some schools declined to adopt the model policies, and the state law that led to them lacked enforcement incentives or penalties.

The current policies adopted by the Youngkin administration were revised to require parental approval for any changes to studentsā€™ ā€œnames, nicknames, and/or pronouns,ā€ direct schools to keep parents ā€œinformed about their childrenā€™s well-beingā€ and require that student participation in activities and athletics and use of bathrooms be based on sex, ā€œexcept to the extent that federal law otherwise requires.ā€ 

Virginia schools have also not fully adopted the newly revised policies, and state law has not changed since the policies were overhauled in 2023.

The Virginia Department of Education faces two lawsuits over the policies adopted by the Youngkin administration.

ā€œAll Virginia students, including our transgender and nonbinary students deserve to feel safe and welcomed at schools,ā€ said Wyatt Rolla, a senior trans rights attorney with the ACLU of Virginia. ā€œAccessing restrooms, locker rooms and other facilities that are necessary when you are at school learning is a key part of our schools being inclusive of those transgender [and] non binary students that are part of our community.ā€

Athletics not included

The provisions under the new Title IX rule did not mention anything about requiring schools to allow trans students to play on teams that align with their gender identity. Virginia has taken its own shot at banning trans athletes from competing in sports through legislation.

In February, the Youngkin administration attempted to challenge the Virginia High School Leagueā€™s policy on transgender athletes, the Daily Progress reported. 

The proposed policy would have matched with the administrationā€™s current policies that students should be placed on teams based on their biological sex rather than their gender identity.

The Virginia High School League, which oversees interscholastic athletic competition for Virginiaā€™s public high schools, allows for trans athletes to participate on teams that match their gender identity, but under certain conditions.

Simultaneously, lawmakers in the Virginia General Assembly controlled by Democrats killed bills, including Senate Bill 68, during the previous session that would have essentially banned transgender students from competing in sports.

State Sen. Tammy Brankley Mulchi (R-Mecklenburg), who carried Senate Bill 723, said students like her 6-year-old granddaughter should have a choice to play with their own gender during a Feb. 1 Senate Education subcommittee hearing.

Mulchiā€™s bill would have required schools and colleges to have separate sports for boys and girls based on their biological sex. Any dispute would require a note from a doctor.

ā€œIf she [my granddaughter] wants to play an all-girl sport, I want her to play against girls that were born girls and not play against someone that is much stronger than her or can hurt her and take away her chances of a scholarship,ā€ Mulchi said.

However, state Sen. Stella Pekarsky (D-Fairfax) argued during the February hearing that whether students are competing with their respective biological sex or not ā€œchildren of all ages, sexes have different builds and strengths and no children are alike on the same team.ā€

******************************************************************************************

Nathaniel Cline

Nathaniel is an award-winning journalist who’s been covering news across the country since 2007, including politics at the Loudoun Times-Mirror and the Northern Neck News in Virginia as well as sports for the Plain Dealer in Cleveland, Ohio. He has also hosted podcasts, worked as a television analyst for Spectrum Sports, and appeared as a panelist for conferences and educational programs. A graduate of Bowie State University, Nathaniel grew up in Hawaii and the United Kingdom as a military brat.

******************************************************************************************

The preceding article was previously published by the Virginia Mercury and is republished with permission.

Nonprofit. Nonpartisan. No paywalls. Fair and tough reporting on the policy and politics that affect all of us is more important than ever. The Mercury brings you coverage of the commonwealth’s biggest issues from a team of veteran Virginia journalists.

Weā€™re part of States Newsroom, the nationā€™s largest state-focused nonprofit news organization.

Continue Reading

Local

Comings & Goings

SBA names Cosme D.C. Small Business Owner of the Year

Published

on

Manny Cosme

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at: [email protected].

The Comings & Goings column also invites LGBTQ+ college students to share their successes with us. If you have been elected to a student government position, gotten an exciting internship, or are graduating and beginning your career with a great job, let us know so we can share your success.Ā 

Congratulations to Manny Cosme, owner of CFO Services Group, who was named Small Business Owner of the Year, for Washington, D.C., by the Small Business Administration.Ā 

SBA Administrator Isabel Castillas Guzman said, ā€œOur 2024 National Small Business Week award winners exemplify excellence, innovation, and commitment, and the SBA is proud to showcase their incredible achievements and impact on their communities and our economy.ā€ Upon being notified of the award Manny said, “I am incredibly honored and humbled to receive the Small Business Owner of the Year award from the Small Business Administration. This recognition serves as a testament to my teamā€™s hard work, dedication, innovation, and impact in our local community.  As a small business owner, I have always strived to embody excellence in my companyā€™s services and commitment to my clients. My team and I are proud to represent the thriving small business communities across the country, and we remain committed to driving innovation, growth, and positive change in our industry.”

Cosme is the founder and current president and CEO of CFO Services Group. The firm is focused on providing bookkeeping, outsourced accounting departments, and fractional CFO advisory services, to growing small businesses and non-profit organizations. The company is headquartered in D.C., with team members and clientele throughout the United States. In addition to working with private business and non-profit clients, CFO Services Group partners with various economic development agencies, such as local governments, chambers of commerce organizations, CDFIs and SBDC centers, to provide free financial literacy and technical assistance to businesses in underserved communities. 

Manny has served as the Vice President of Finance & Administration for the United States Hispanic Chamber of Commerce. He recently served as the Finance Chair for the Greater Washington Hispanic Chamber of Commerce, and Vice President of the Equality Chamber of Commerce. He is often sought after in keynote discussions on entrepreneurism and finance for fellow business owners. 

Continue Reading

Maryland

What Anne Arundel County school board candidates think about book bans

State lawmakers passed Freedom to Read Act in April

Published

on

Parents in some Maryland school districts have organized campaigns to restrict the kinds of books allowed in school libraries. (Photo by Kylie Cooper/Baltimore Banner)

BY ROYALE BONDS | Parentsā€™ efforts to restrict content available to students in school libraries has become a contentious issue in Maryland. Conservative parent groups, such as Moms for Liberty, have been working to get books they believe are inappropriate removed from libraries in Carroll and Howard counties, sparkingĀ protests, new policies, and even aĀ state law.

The Freedom to Read Act, passed in April, sets standards that books cannot be removed from public and school libraries due to an authorā€™s background. Library staff that uphold the standard are protected under this act. The law, however, does not prohibit removing books deemed ā€œsexually explicit,ā€ the stated reason local Moms for Liberty chapters challenged school library books.

The rest of this article can be read on the Baltimore Banner website.

Continue Reading
Advertisement
Advertisement

Sign Up for Weekly E-Blast

Follow Us @washblade

Advertisement

Popular