Bloomberg Law
Jan. 28, 2019, 11:47 AM

Courts Weighing LGBT Job Bias Claims While SCOTUS Dallies

Porter Wells
Porter Wells

Cases testing whether federal law protects workers from employment discrimination based on sexual orientation are still tying up lower courts, even as the U.S. Supreme Court tries to decide whether it wants to take on the issue.

A lesbian assistant manager who claims Walmart discriminated against her and subjected her to a hostile work environment shouldn’t be allowed to move forward, Walmart told the U.S. District Court for the Southern District of Ohio Jan. 24. The U.S. Court of Appeals for the Sixth Circuit doesn’t consider sexual orientation a protected class under Title VII, it said.

And a straight male who was perceived as gay and allegedly discriminated against because of it had his discrimination claims dismissed from the U.S. District Court for the Eastern District of Pennsylvania Jan. 24. The Third Circuit, too, has said discrimination based on a worker’s sexual orientation isn’t protected under Title VII.

The moves in the trial courts come as the Supreme Court continues to delay its decision on whether it will hear any of the three sexual orientation and identity bias petitions pending on its docket.

In the meantime, trial courts are bound by the decisions of their circuit courts of appeal. The Second and Seventh Circuits have said Title VII bans workplace discrimination based on a worker’s sexual orientation; the Third, Sixth, and Eleventh Circuits say it doesn’t.

Controlling Precedent

Judge Gerald McHugh was reluctant to dismiss Shaun Guess’s claims that he was subjected to harassment and assigned the roughest tasks because his coworkers believed him to be gay. It may be time for the Third Circuit to revisit its case law excluding gay workers from Title VII’s protection, he said.

“Any assumption about another person’s sexuality, correct or not, necessarily seems to rely on assumptions or stereotypes about how members of that person’s gender typically conduct themselves,” McHugh said.

A 2001 decision from the Third Circuit required the dismissal of Guess’s sex bias claims, but Guess “rightly questions the foundations upon which” that decision rests, McHugh said.

Walmart also cited to controlling appellate precedent in its motion to the Ohio district court.

Allison Strunk didn’t assert discrimination based on gender stereotyping, only “a threadbare claim of discrimination under Title VII based solely on her identification as a lesbian,” for which “no such cause of action exists under Sixth Circuit precedent,” Walmart said.

Walmart also pointed out that the Sixth Circuit’s March 2018 ruling that transgender persons are protected from workplace discrimination specifically didn’t overrule a previous holding that sexual orientation bias isn’t protected under Title VII. The issues of gender identity bias and sexual orientation bias are different legal questions, and so its ruling shouldn’t be extended claims asserting only sexual orientation discrimination, the Sixth Circuit said.

The transgender bias case is one of the three Title VII petitions awaiting Supreme Court action. The other two petitions concern sexual orientation bias under Title VII.

The Southern District of Ohio has yet to rule on Walmart’s motion.

Justin Robinette represents Guess. Margolis Edelstein represents the Philidelphia Housing Authority.

Matthew Bruce represents Strunk. Dinsmore & Shohl LLP represent Walmart.

The cases are Guess v. Phila. Hous. Auth., 2019 BL 24010, E.D. Pa., No. 18-2948, 1/24/19, and Strunk v. Walmart, Inc., S.D. Ohio, No. 2:18-cv-1536, motion to dismiss 1/24/19.

To contact the reporter on this story: Porter Wells in Washington at

To contact the editors responsible for this story: Jo-el J. Meyer at; Nicholas Datlowe at