In recent years, courts and administrative agencies have broadened the Title VII protections against discrimination based on sex using the Price Waterhouse theory of gender non-conformity.  For example, as previously reported here, the EEOC used this rationale to recognize a cause of action for transgender discrimination under a theory of sex stereotyping and gender non-conformity.  In a recent decision [pdf], an Ohio federal judge went one step further and applied this line of reasoning to discrimination based on gender non-conformity and name change in a homosexual marriage.  The facts surrounding this decision are as follows:

Jason Cabot first began working at Ohio Bell in 2000.  All of his co-workers knew that he was homosexual.  He left the company in 2006, seemingly on good terms.  In 2008, Jason Cabot married his husband in Massachusetts and took his husband’s name, Koren.  In 2009, he was rehired by Ohio Bell as a “limited term” sales consultant.  Soon after being rehired, he legally changed his name to Jason Koren.

During this second term of employment, Koren made numerous complaints including:  (1) not being allowed to lead team meetings, (2) having his customer recommendations posted in the bathroom rather than in the hallway with other employees’ recommendations, and (3) denial of intranet access.  Koren also alleged that after his name change, his manager refused to call him by his married name, went out of her way to call him by his previous last name, and informed him that she did not recognize same-sex marriages.  In September of 2009, Koren’s father passed away, and Koren missed nine days of work.  He alleges that Ohio Bell told him that this would be excused time off of work.  However, upon his return to work, Ohio Bell assessed him with seven unexcused absences.

In October of 2009, Ohio Bell decided to convert some “limited time” consultants, like Koren, to “full time” consultants.  The conversion was made if a “limited time” consultant had a satisfactory rating in performance and attendance.  Those with unsatisfactory performance and attendance were terminated.  The company decided that the cut-off for satisfactory attendance was four unexcused absences.  Because Koren had seven unexcused absences, he was terminated.  Following his termination, Koren filed suit claiming, among other things, gender discrimination under Title VII.

Ohio Bell argued that Koren’s claim of gender discrimination is merely an attempt “to bootstrap protection for sexual orientation into Title VII,” which is a protection prohibited by Vickers v. Fairfield Medical Center.  However, Koren did not allege discrimination based on his sexual orientation; rather, Koren claimed gender discrimination based on his gender non-conformity.  He alleged that by taking his husband’s last name, he failed to conform with the male stereotype.  The discriminatory treatment that resulted from this non-conforming behavior was therefore unlawful.  The Court accepted Koren’s allegation as failure to conform and also found sufficient facts to support that Ohio Bell’s proffered reason for Koren’s termination was pretext for discrimination based on failure to conform to gender norms.  As such, the Court denied Ohio Bell’s motion for summary judgment.

Based on this federal decision, and the increasing number of state and city anti-discrimination policies that protect against discrimination based on sexual orientation, it is clear that the law is evolving to include additional causes of action based on gender non-conformity.  As such, employers are reminded to make employment decisions based solely upon performance or requirements of the position.