Third Circuit agrees to review sexual-orientation case

The Third Circuit Court of Appeals has agreed to review the case of “John Doe,” a South Philadelphia man who resigned from his job at the Philadephia Housing Authority after a supervisor allegedly called him a “fucking faggot.” If the court rules favorably for Doe, federal antibias protections would be extended to thousands of LGBT workers in the region. 

From November 2014 to August 2017, Doe worked at PHA as a family self-sufficiency coordinator. The position involves linking public-housing residents to supportive services so they can achieve economic independence.

In his lawsuit, Doe alleges he was targeted for tougher work assignments because of his perceived sexual orientation. He claims he was routinely assigned to lift boxes, carry water jugs and pick up bookbags — instead of the female employees. On July 26, 2017, a supervisor told Doe to pick up heavy bookbags. When Doe objected, the supervisor allegedly called Doe a “fucking faggot” in front of other coworkers. Doe doesn’t identify as gay, according to court papers.

According to Doe’s lawsuit, the supervisor sent two text messages to Doe, after Doe reported the incident to upper management.  On Aug. 2, 2017, she sent a message that didn’t deny using an antigay slur against Doe. Instead, the message suggested that Doe could have talked to her personally about the incident and warned him to watch whom he spoke to. On Sept. 6, 2017, she expressed shock at Doe’s handling of the situation. The message stated in part, “[a]ll of this over something you started . . . yeah I slipped and said you were acting a certain way and I apologized for it but for you to go this far!” She also stated, “[y]ou’re not even gay to be that hurt that I said your [sic] acting that way . . . I’m beyond hurt!”

Doe submitted his resignation on Aug. 31, 2017, and filed a federal lawsuit against PHA on July 13, 2018, claiming a hostile-workplace environment. The suit was dismissed on Jan. 24 by U.S. District Judge Gerald A. McHugh for the Eastern District of Pennsylvania, on the basis that Title VII of the Civil Rights Act of 1964 doesn’t cover anti-LGBT workplace bias.

Doe’s attorneys asked the Third Circuit to review the case, and on April 26, the court announced that it agreed to do so. Doe is represented by Justin F. Robinette, Gregory R. Nevins and Omar Gonzalez-Pagan. They declined to comment for this article.

The Third Circuit encompasses Pennsylvania, New Jersey, Delaware and the Virgin Islands. The Third Circuit court currently holds the position that Title VII doesn’t cover sexual-orientation discrimination. But if the court reverses that position and rules favorably for Doe, federal antibias protections would be extended to thousands of LGBT workers in the circuit.

The Third Circuit judges who granted permission for the review are Joseph A. Greenaway Jr.,  Richard L. Nygaard and Kent A. Jordan. But they’re not necessarily the three judges who ultimately will rule on the matter. The circuit is composed of 13 judges and a different three-judge panel may be selected. 

On April 22, the U.S. Supreme Court announced that it will hear three cases relating to whether Title VII covers LGBT workplace bias. Those cases involve a gay skydiving instructor in New York, a transgender funeral director in Michigan and a gay child-welfare services coordinator in Georgia. A ruling by the high court is expected in June 2020. It’s possible the Third Circuit will issue a ruling on the PHA case before then.

Nichole Tillman, a PHA spokesperson, had no comment for this story.

In a Feb. 1 email message, Tillman wrote: “While PHA does not comment on pending litigation out of respect for those making claims against PHA, it is important to know that PHA has and will continue to treat all employees and residents equally, without regard to gender, sexual orientation, race, religion or disability and consistent with the law as it stands. PHA welcomes any changes the courts or legislature make in the future regarding to perceived sexual orientation.” 

Last week, in a May 2 email, Tillman wrote: “PHA has no further comment on this active litigation.” 

Catherine S. Straggas, an attorney for PHA, also declined to comment.