A recent Middle District of North Carolina decision might signify a change for plaintiffs alleging discrimination based on their sexual-orientation.  In Dawkins v. Richmond County Schools, 1:12-cv-414 (M.D.N.C. May 4, 2012), United States Magistrate Judge L. Patrick Auld held that the plaintiff stated a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause based on his allegations that he was discriminated against on the basis of his sexual orientation.

Title VII and other federal employment statutes generally do not prohibit workplace discrimination on the basis of sexual orientation.  Thus, while employers cannot discriminate on the basis of race, national origin, sex, religion, age, or disability, they can in most cases avoid legal liability for discrimination based on sexual orientation.  For example, in Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006) the Sixth Circuit upheld the district court’s dismissal of a case on its pleadings because the alleged discrimination was because of the employee’s sexual orientation.

Dawkins might signal a departure from this antiquated standard.  The plaintiff, a bisexual/gay male, claimed that Richmond County Schools “discriminated against [him] based on [his] sexual orientation and gender.”  He claimed that the defendant failed to renew his contract because of his sexual orientation.  He also alleged several incidents involving homophobic jokes and behavior at the school.

It is important to note that the court reaffirmed that “Title VII does not prohibit employment discrimination based on ‘sexual orientation.’”  However, it found another basis for the plaintiff’s claim.  It concluded that his complaint sufficiently alleged that the Principal discriminated against him in violation of the Equal Protection Clause.  That is, there was no permissible basis for treating him differently than similarly situated employees.

While Title VII will likely need to be amended by Congress to add sexual orientation as a protected category, Dawkins offers some hope that sexual orientation discrimination victims in the public sector may find protection under the Equal Protection Clause.

– Sean Herrmann