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One to Keep An Eye On: Burrows v. College of Central Florida


As with many employment and labor law related cases that are being litigated around the country, there are always a few that stand out.  This is one to keep an eye on.


Facts:  Barbara Burrows ("Burrows") was a lesbian college professor and administrator at College of Central Florida ("CCF").  When CCF President Charles Dassance ("Dassance") hired Burrows, he knew she was a lesbian and had a partner.  Burrows initially received acceptable annual evaluations her first two years in the position and CCF renewed her contract each year.  However, Dassance began to receive complaints from faculty and staff about Burrows and her job performance.  Dassance was subsequently informed CCF would not renew her contract for another year.  

CCF allowed Burrows to transfer to a teaching position in the math department, but she received about $40,000.00 less in salary in her new position.  Burrows subsequently filed grievances that she was entitled to additional salary, but each grievance was denied.  Burrows proceeded with a discrimination claim and alleged that CCF failed to renew her contract based upon her gender, sexual orientation, marital status, failure to conform to religious beliefs, and failure to conform to gender stereotypes in violation of Title VII of the Civil Rights Act of 1964 and Florida state law. 

The Main Issue:  Does sexual orientation discrimination constitute illegal gender stereotyping in violation of Title VII of the Civil Rights Act of 1964?

Current Status:  After the case got moved to federal court, CCF filed a 12(b)(6) motion to dismiss the claims on the grounds that discrimination based upon sexual orientation was not covered by either Title VII or Florida state law.  The District Court granted the motion as to the sexual discrimination claim on the grounds that the 11th Circuit and other courts have consistently held that Title VII does not apply to discrimination based upon sexual orientation.

Burrows subsequently appealed the District Court's ruling.  Recently, the Equal Employment Opportunity Commission ("EEOC") filed an amicus brief in support of Burrows.  The EEOC argued that the District Court's dismissal was in error because:

  1. Sexual orientation discrimination necessarily involves sex stereotyping, as it results in the adverse treatment of individuals because their orientation does not conform to heterosexually defined gender norms.  
  2. Sexual orientation discrimination constitutes gender based associational discrimination.  As the EEOC pointed out, the 11th Circuit Court of Appeals has previously held that associational discrimination is actionable under analogous circumstances implicating race.
  3. Title VII generally prohibits sex based considerations in the employment context.  Therefore, discrimination based on sexual orientation necessarily requires such impermissible consideration of a plaintiff's sex.

Therefore, the EEOC argued that when an employer discriminates against an employee based upon sexual orientation, the employer necessarily discriminates based upon sex...which is in violation of a protected category under Title VII.  

Looking Ahead:  This is a very interesting case sitting in the 11th Circuit.  Note, the EEOC's brief was only just submitted to the Court of Appeals on January 6, 2016.  I would expect the Court will allow additional briefs on the issue in the coming weeks/months.  

Granted, it is a bit of an uphill fight for Burrows as the District Court used a rather restrictive interpretation of Title VII to conclude that Burrows could not proceed on that portion of her claim against CCF.  The one thing that Burrows does have on her side, however, is the fact that an increasing number of courts that have held that sexual discrimination is in fact actionable under Title VII and therefore, if the Court of Appeals adopted a broader reading of Title VII, her claim should be allowed to proceed.  The only question is whether the 11th Circuit will follow that line of reasoning?  This is certainly one to keep an eye on. 


A copy of the EEOC's brief can be found here:  hr.cch.com/ELD/BurrowsbriefCTA11.pdf


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