Lesbian police officers’ DCHRA hostile environment claims will go to jury

Two lesbian police officers who alleged, among other things, they were not allowed to share a patrol car, prevented from bidding on the same assignments, had their incident reports publicized, and endured derogatory comments from their supervisors about their relationship and sexual orientation could proceed with their hostile work environment discrimination claims under the D.C. Human Rights Act, a federal district court in the District of Columbia ruled. Because their claims all were based on allegations related to their lesbian relationship, the court found they had not raised any material fact issues as to harassment based on gender, and it summarily dismissed their sex discrimination claims under Title VII and DCHRA. But the court allowed the officers’ retaliation claim to proceed, finding they alleged their supervisors became hostile and lowered their performance evaluations after they complained of sexual orientation-based harassment (Jones v. District of Columbia, June 4, 2018, Collyer, R.).

Change in work assignments. In 2006, a lesbian police officer for the D.C. police department began an intimate relationship with her female squad car partner. The two alleged that their male supervisor’s behavior toward them changed once they told him about their relationship. When the officers arrived at a domestic violence call and determined a teenager had been attacked for telling her family she was a lesbian, their supervisor ordered them not to arrest the family members. The officers disagreed and called the department’s Gay and Lesbian Unit, which arrested the family members. The supervisor was disciplined for failing to make a lawful arrest. After this incident, the officers alleged their supervisor became more hostile, preventing them from riding in the same patrol car or from bidding for the same assignment together, although they alleged heterosexual partners were allowed to do so.

Their supervisor subsequently posted a notice that the two officers working together had too many use-of-force incident reports and experienced too many work injuries, which the officers contended was inappropriate—although they did not contest the number of reports. They also complained of off-site conduct by their supervision during a “bike week” trip that they took, along with other coworkers, during which the supervisor, who was drunk, asked about having sex in front of the officers and several others. It was disputed whether he was soliciting them specifically.

Issues with new supervisor. Working a different shift under a new supervisor, the two officers, now patrolling together, refused to arrest a prostitute driving a stolen car because they believed she had permission to drive it. Their new supervisor was angry at their insubordination and separated them, assigning one of the officers to a detail at a specific address where she could not engage in other police work. The officers alleged the new supervisor also made derogatory remarks about their sexuality and had sexually explicit conversations with them. Coworkers also allegedly harassed them because of their sexual orientation. One employee offered $5,000 to watch them have sex; another asked one of the officers for a kiss; a third told one of the officers she should “go back” to men. One of the officers was later investigated for two procedural violations, one of which she contended was baseless.

Stress leave. In addition, the officers each requested one hour of leave to attend a wedding. Their supervisor, in accordance with department policy, deducted two hours, but the officers then protested the deductions, claiming they became too stressed to work, and took leave for stress.  While on leave, they both filed EEO complaints, alleging discrimination based on sexual orientation and retaliation. After they returned, their supervisor allegedly made additional derogatory comments, and they complained of a number of other incidents as well.

Promotion. One of the officers was promoted to the detectives’ office. She claimed she was given less desirable assignments than male colleagues, arrest warrants she initiated were given to male colleagues for closure, and her cases were reassigned to male detectives. She was denied leave to attend the funeral of a fallen officer.

The officers eventually sued under Title VII and the D.C. Human Rights Act, alleging hostile work environment due to their sex and their sexual preference, as well as a retaliatory hostile work environment.

Hostile work environment. After finding the officers’ claims timely, the court denied summary judgment on the officers’ hostile work environment claim based on sexual orientation under the DCHRA. To the detriment of their allegations, the court noted that the officers had adopted an “everything but the kitchen sink” litigation strategy, “by which every perceived impropriety, trivial slight, or unwelcome management decision is alleged to have contributed to a hostile work environment.” Even so, the court rejected the employer’s characterization of the officers’ claims as a mere list of various supervisors’ improper actions, which may have been uncivil but were ordinary workplace tribulations. Rather, their first supervisor disparaged their relationship and made sexual comments; another superior asked for a kiss. These allegations of explicit sexual behavior, or inappropriate comments regarding the same-sex relationship, supported their claim.

The employer also claimed that the officers’ “multiple complaints regarding personnel decisions”—including the claim at the heart of the case, that their supervisor separated them after learning of their same-sex relationship—did not support a harassment claim. It argued that its “legitimate need to manage employee staffing levels and employee assignments was not trumped by Plaintiffs’ desire to ride in the same car,” but the court pointed out that the employer had discarded the records that would show officer assignments so that a comparison of the women’s experience and that of others could be made. As a result, resolution of this issue had to be based on credibility determinations of witness testimony by a jury, the court concluded. Similarly, the employer stressed that the two women had increased use of force incidents when they worked together, which would be a legitimate, nondiscriminatory reason why they were separated, they women claim this information was posted inappropriately, and the court found the written record insufficient, so a jury would have to evaluate witness credibility.

Other evidence from which a jury could find a hostile work environment came in the former supervisor’s drunken request for sex, which although it occurred off-site at the bike week party, it was attended by many coworkers and supervisors, and the offending comment was made by a direct supervisor. While a single offensive utterance outside the workplace does not create a hostile work environment at work, the court said it could not make that distinction here on the written record. And, it also was uncontested that the supervisor later lowered both officers’ annual evaluations.

Wasted allegations. Nevertheless, the court prohibited the officers from presenting all of their factual allegations to a jury, finding some of the alleged incidents to be mere trivialities. These included their supervisor asking them to ride their motorcycles to work, their former supervisor throwing paperwork on the floor, and their supervisor accusing one officer of being AWOL (when she was in fact AWOL), and marking the officers absent for two hours instead of one, which was the department policy. Additionally, assigning one officer to duty at a specific property was provoked by her refusal to follow orders. Nor could their allegations of offensive behavior by nonsupervisory coworkers—conduct that they had failed to report—be used to support their claims.

Discrimination based on sex. Although one of the officers’ Title VII sex discrimination claims was time-barred, the other officer’s was not. However, she failed to make out a sex-bias based claim under DCHRA or Title VII. The sex discrimination arguments relied on the theory that the officers suffered harassment because, as women in a lesbian relationship, they failed to conform to “typical gender stereotypes.” The district court explicitly disagreed with courts that have held that Title VII prohibits discrimination based on sexual orientation; instead, it stressed that sexual orientation is a separate class of protected individuals under the DCHRA. Accordingly, because of the timeliness issues and the rationale above, the court granted summary judgment to the employer against the hostile work environment allegations based on sex under both Title VII and the DCHRA.

Retaliation. But the court denied summary judgment on the officers’ retaliatory hostile work environment claim. The employer contended that their allegations were insufficiently severe or pervasive to alter the conditions of their employment, but the court disagreed. After they took steps to raise their claims of sexual harassment based on sexual orientation, successive supervisors became increasingly hostile toward them. The officers attributed their lowered performance evaluations and increased anger and hostility from their supervisors to retaliatory animus. The written record was insufficient for the court to make credibility determinations as to whether the alleged harassment was sufficiently severe and pervasive to interfere with the officers’ responsibilities, was provoked by disdain for their sexual orientation, or was in retaliation for their complaints, and this claim would go to a jury as well.

07/06/2018