A federal appeals court has upheld a “sex-plus” discrimination ruling in the case of a lesbian firefighter who said she suffered horrendous harassment on the job.
A jury in 2016 found that the Providence, R.I., Fire Department had discriminated against Franchina because of her gender and sexual orientation and that the city failed to address the problem, and awarded her a six-figure sum. In a Thursday ruling affirming the decision, Judge Ojetta Rogeriee Thompson of the U.S. Court of Appeals for the First Circuit, writing for a three-judge panel of the court, detailed the treatment Franchina endured:
“‘Cunt,’ ‘bitch,’ ‘lesbo’: all are but a smattering of the vile verbal assaults the plaintiff in this gender discrimination case, Lori Franchina, a former lieutenant firefighter, was regularly subjected to by members of the Providence Fire Department (‘the Department’). She was also spit on, shoved, and — in one particularly horrifying incident — had the blood and brain matter of a suicide-attempt victim flung at her by a member of her own team.”
In its appeal, the city objected to several things about the 2016 ruling. It said, for one, that Franchina did not present sufficient evidence to prove not only sex discrimination, but sexual orientation discrimination as well — the “sex-plus” ruling.
Such claims “are a flavor of gender discrimination claims where ‘an employer classifies employees on the basis of sex plus another characteristic,’” Thompson wrote, quoting another ruling. She continued, “The City, it seems, believes that under a sex-plus theory, plaintiffs are required to identify a corresponding sub-class of the opposite gender and show that the corresponding class was not subject to similar harassment or discrimination.” But this is not required under establish case law, she said.
Thompson also wrote that nothing in a case cited by the city to support its position, Higgins v. New Balance Athletic Shoe Inc., “forecloses a plaintiff in our Circuit from bringing sex-plus claims under Title VII where, in addition to the sex-based charge, the ‘plus’ factor is the plaintiff's status as a gay or lesbian individual.” Title VII is the section of the U.S. Civil Rights Act of 1964 that bans sex discrimination.
This finding is particularly important, according to several civil rights groups. The groups, GLBTQ Legal Advocates and Defenders, the National Center for Lesbian Rights, Lambda Legal, and the American Civil Liberties Union, had filed a friend-of-the-court brief “arguing that it is time for all the federal circuits to recognize that under a correct analysis of existing Title VII principles, sexual orientation discrimination is sex discrimination under that law,” they noted in a press release today.
Thompson and her fellow judges saw nothing in the city’s other arguments about evidence presented in the case to make them overturn the jury ruling. They also upheld the monetary award to Franchina — more than $700,000, plus $184,000 in legal fees. A spokesman for Providence’s mayor told The Providence Journal the city will not appeal further.
Franchina had joined the department in 2002 and retired on disability in 2013, having been diagnosed with post-traumatic stress disorder due to the treatment she had received.
“The abuse Lori Franchina suffered at the hands of the Providence Fire Department is nothing short of abhorrent and, as this case demonstrates, employers should be cautioned that turning a blind eye to blatant discrimination does not generally fare well under anti-discrimination laws like Title VII,” Thompson concluded in her ruling.