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District Court in Sixth Circuit Holds Title VII Sexual Orientation Discrimination Claims Are Invalid


Clemons v. City of Memphis, Tennessee - United States District Court, Western District of Tennessee, Western Division


Facts:  Davin Clemons ("Clemons") was a TACT officer for the Memphis Police Department.  Clemons claimed that during his employment, the City of Memphis and the Memphis Police Department ("Defendants") discriminated against him because of his sex and sexual orientation.  Apparently, Clemons' supervisors told him they did not approve of his 'homesexual lifestyle', made negative comments about Clemons' engagement to a same-sex male officer, and inconsistently applied department policies against him, among other alleged discriminatory conduct.  

Clemons subsequently brought a Title VII suit against Defendants on the grounds that he was unlawfully discriminated against because of his sexual orientation.  Defendants moved to dismiss his suit.

Holding:  (Note, this analysis only focuses on the Title VII sexual orientation discrimination portion of Clemons' suit).  As with any case that involves a parsing of the language of a statute, the Court looked at the language of Title VII of the Civil Rights Act of 1964.  In essence, Title VII prohibits an employer from discriminating against an individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."  

The Court next turned to a prior Sixth Circuit case, Gilbert v. Country Music Ass'n, Inc., from 2011 which dismissed a sexual orientation discrimination claim.  In that case, the Sixth Circuit held that simply bringing a claim for sexual orientation discrimination under Title VII cannot survive a motion to dismiss as Title VII does not provide protections for employees that allege this form of discrimination.  However, the Court did reference an EEOC decision from 2015 in which it was held that "allegations on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex" and therefore should be included within the scope of Title VII.

Consequently, in reliance upon Gilbert (and without any other controverting Sixth Circuit precedent, the Court held that Clemons could not survive a motion to dismiss his Title VII sexual orientation discrimination claim.

Judgment:  The District Court dismissed Clemons' Title VII sexual orientation discrimination claim on the grounds that this type of alleged discrimination is not a protected category under Title VII and therefore is not an actionable claim.

The Takeaway:  I always like to remind readers to check the caselaw, statutes, bills, etc. in their state to know what the law is.  This case is a prime example.  Readers might recall that last month I highlighted a case out a district court in Pennsylvania (in the Third Circuit) in which that court held that Title VII prohibits discrimination on the basis of sexual orientation.  A few weeks later, we have this case come along which reached a different conclusion.  Some readers might wonder how this can be:  Similar facts, alleged discriminatory conduct by the employer on the basis of an employee's sexual orientation, and brought under Title VII.  In short, prior caselaw in a state (or circuit) has a controlling impact on how following cases are likely decided.  

Granted, this case could still be appealed to the Sixth Circuit, but based upon Gilbert, I doubt the court of appeals would reach a different conclusion.  Perhaps it will take a split among several circuits before this type of Title VII case would potentially reach the Supreme Court.  Time will tell.

Majority Opinion Judge:  Judge McCalla

Date:  December 28, 2016

Opinion:  hr.cch.com/eld/ClemonsMemphis122816.pdf

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