The U.S. First Circuit Court of Appeals yesterday upheld a $700,000 jury award for Lori Franchina, a lesbian firefighter who experienced extensive unchecked harassment from her co-workers at the Providence Fire Department.
In ruling in Ms. Franchina’s favor, in Franchina v. City of Providence, the Court concluded there was more than enough evidence to support her “sex plus” discrimination claim under Title VII of the U.S. Civil Rights Act, where the “plus” in Ms. Franchina’s case is her sexual orientation.
The ruling clarifies in the First Circuit that the existence of sexual orientation discrimination does not negate a sex discrimination claim under Title VII.
A moving, powerful opinion by Judge Ojetta Rogeriee Thompson emphatically upheld the verdict and damages awarded Ms. Franchina against the City of Providence, citing the egregious abuse Ms. Franchina endured.
The Court points out that Ms. Franchina’s case did not directly challenge Higgins v. New Balance Athletic Shoe, Inc., which cast doubt on whether sexual orientation discrimination is covered under Title VII and has made it very difficult for lesbian, gay, and bisexual plaintiffs to bring Title VII claims.
Yesterday’s ruling nevertheless cleared up much of the confusion caused by Higgins. Alluding to the datedness of Higgins as a “nearly twenty-year old” decision, Judge Thompson also noted the narrow reach of that ruling, stating “we do not believe that Higgins forecloses a plaintiff in our Circuit from bringing sex-plus claims under Title VII where, in addition to the sex-based charge, the ‘plus’ factor is the plaintiff's status as a gay or lesbian individual.”
GLAD, NCLR, Lambda Legal, the ACLU, and ACLU of Rhode Island submitted a friend-of-the-court brief addressing the problems and confusion created by decisions like Higgins – which this ruling has now gone some considerable way to clear up - and arguing that it is time for all the federal circuits to recognize that under a correct analysis of existing Title VII principles, sexual orientation discrimination is sex discrimination under that law, as the Seventh Circuit held last year in Hively v. Ivy Tech and as the concurring Chief Judge persuasively argued in Christensen v. Omnicom Group in the Second Circuit.
