For seven years, Lori Franchina, a lesbian firefighter in Rhode Island, was called “bitch,” “cunt,” and “lesbo” by her male colleagues. Male firefighters and first responders refused to work with Franchina, including repeatedly not assisting her at accident sites—which once resulted in the death of a car crash victim. Finally, in the most brutal of the incidents, a male colleague flung blood and brain matter on her.
All these are allegations Franchina made in Franchina v. City of Providence, which the First Circuit Court of Appeals decided in her favor in late January. The decision could allow individuals to bring cases to court under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex, when they face on-the-job bigotry based on their sexual orientation. The case, however, also shows the lengths municipalities will go to in order to fight these sorts of claims.
As Franchina’s complaint outlines, the fire department, by and large, refused to reassign her male counterparts. Instead, she was shunted aside into desk jobs. Finally, in 2013, she resigned entirely because she was suffering from post-traumatic stress disorder (PTSD). In 2015, she brought a lawsuit against the city under Title VII alleging two claims: “(1) that she was subjected to a hostile work environment, and (2) that she suffered retaliatory action for having reported sex-based discrimination to her superiors.”
Franchina brought her case under what is known as a “sex-plus” theory of Title VII discrimination, meaning that she suffered discrimination on the basis of her sex and another characteristic. That “other characteristic” is often things like race or age, but in this case, the other characteristic was Franchina’s sexual orientation.
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She prevailed at trial and the jury awarded her damages on both claims, including “front pay” damages. Front pay damages are awarded where an employee has no prospect of ever obtaining comparable alternative employment in the future. Franchina successfully showed that she had earned a significant yearly income—up to $135,000 a year—as a first responder. Her PTSD, however, renders her permanently disabled and prevents her from continuing as a firefighter or first responder. She currently lives on $25,000 per year in disability benefits.
The award of front pay helps Franchina to get part of her life back, but she can never return to a profession she loved and excelled at.
On appeal, the city raised two arguments against Franchina’s sex-plus claim: First, it argued that you cannot bring a Title VII cause of action based on sexual orientation. In other words, it contended that “discrimination based on sex” does not include discrimination based on sexual orientation, and that LGBTQ people have no legal protection in this regard.
This fight over the scope of Title VII has been fought already in other federal appellate circuits, with a range of outcomes. The Seventh Circuit dealt with a similar case in Hively v. Ivy Tech and ultimately determined that workplace discrimination based on sexual orientation does violate Title VII. However, the 11th Circuit, for example, has held the opposite.
And in an unforeseen and absurd twist, the federal government now stands on both sides of the issue. In a case in the the Second Circuit, the Equal Employment Opportunity Commission (EEOC)—which has enforcement responsibility for Title VII—has continued to argue that Title VII protects workers from discrimination based on sexual orientation. Indeed, the former chair of the EEOC said that her greatest success during her tenure was expanding workplace protections for LGBTQ people. In a startling move, the U.S. Department of Justice filed a brief in September on the opposite side of the Second Circuit case, arguing that Title VII does not protect LGBTQ people from workplace discrimination based on their orientation. That case remains pending, which throws everything into disarray.
In the Franchina case, the city pushed back on the sex-plus claim by saying that all the discrimination Franchina suffered was because of her sexual orientation, not her gender. And, the city’s reasoning went, sexual orientation is not covered under Title VII, so Franchina should go away empty-handed. The appellate court rejected this argument, pointing out that Franchina was repeatedly subjected to sexually degrading and gender-specific slurs, and that such behavior has generally been held to constitute harassment based on sex.
The city also pushed back on Franchina’s sex-plus claim by arguing that she needed to identify a corresponding subclass of the opposite gender and prove that subclass did not suffer the same types of discrimination. In Franchina’s case, as she is a lesbian, the appropriate subclass would then be gay men. Put another way, the city contended that Franchina needed to present evidence at trial that there was a group of gay male firefighters, similarly situated to her in rank and experience, who did not suffer discrimination.
This is, of course, nonsensical, and the appellate court pointed that out. Under that reasoning, Circuit Court Judge Ojetta Rogeriee Thompson noted, a business or a municipality could avoid Title VII liability altogether by not employing certain people: “Under such an approach, for example, discrimination against women with children would be unactionable as long as the employer employed no fathers.”
Though the decision in this instance is not as clear as that of the Seventh Circuit in Hively, which much more explicitly advanced the analysis that Title VII prohibits discrimination based on sexual orientation, it is still a major step forward for the First Circuit. It makes clear that sex-plus claims are not prohibited just because the “plus” is that the person harassed is LGBTQ. And, of course, Franchina’s jury award, including the critical front pay, stands. Given the fact that the Trump administration is staking out a position that Title VII does not provide protection for LGBTQ individuals, it looks like this battle will have to be fought state by state, court by court. So a win—even a relatively minor one—is a good thing.