A female firefighter has direct or circumstantial evidence that she was intentionally discriminated against based upon he gender. Undoubtedly, if she brings a Title VII action against the fire department, her action will survive a motion for summary judgment. But what if the firefighter brings an action against the fire department claiming that she was intentionally discriminated against based upon her gender plus her height?
Well, according to the recent opinion of the Seventh Circuit in Coffman v. Indianapolis Fire Dept., 2009 WL 2525762 (7th Cir. 2009), that’s a horse of a different color. The plaintiff in Coffman raised just such an argument, but the Seventh Circuit found that it did not need to address it because, inter alia, it had not yet recognized a “sex-plus” theory of discrimination and the plaintiff failed to develop her “sex plus” argument. I think that this was the wrong conclusion.
In October and November 2003, two fellow firefighters who had ridden as passengers with Coffman in department vehicles expressed concern about her driving ability. In the first e-mail, Lieutenant Montgomery Hoyt wrote Division Chief of Health and Safety, Howard Stahl, and Assistant Chief Mickey Radez, observing that Coffman needed to put the bench seat all the way forward in order to reach the pedals and needed to “literally hold on to the steering wheel for support.” Within several days another firefighter e-mailed several chiefs stating that he and Lieutenant Hoyt were concerned that Coffman could not safely operate the vehicle because she had to look through the steering wheel to see out the front window and use her upper body to hold herself up in her seat. Then in early November yet another firefighter wrote an e-mail to Chief Charlie Miller expressing his concern that Coffman could not reach the pedals in a particular squad car without sitting on the edge of the seat.
These e-mails prompted a series of so-called “safety evaluations” of Coffman’s driving, which in turn led to fitness for duty evaluations (I won’t list all of the details of the evaluations in this post, but you can find that in the opinion). Coffman thereafter sued the Indianapolis Fire Department and two of her superiors, claiming that the driving tests and evaluations amounted to gender discrimination and sexual harassment under Title VII. In support of this claim, Coffman alleged “that the Department employed several short men who were never obligated to undergo driving evaluations.”
The defendants thereafter moved for summary judgment, which the district court granted; thereafter, Coffman appealed to the Seventh Circuit, claiming, inter alia, that “the fire department discriminated against her as a short female in particular.” In response, the Seventh Circuit noted that it had “not yet decided in this circuit whether we recognize a ‘sex-plus’ theory of discrimination…, which hinges on disparate treatment based on sex in conjunction with another characteristic.” (As support for this point, the court cited to its previous opinion in Logan v. Kautex Textron N. Am., 259 F.3d 635, 638 n.2 (7th Cir, 2001), in which it refused to consider a plaintiff’s claim that she was discriminated against based upon her race plus her gender because she pleaded only discrimination on account of her race). The Seventh Circuit then found that it did not need to resolve the issue in Coffman because, inter alia, “Coffman fail[ed] to develop her ‘sex plus’ argument.”
I disagree with this conclusion. Why? Well, what exactly is a “sex plus” or “gender plus” theory of discrimination? The Seventh Circuit in Coffman cited the Second Circuit’s opinion in Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 118 (2nd Cir. 2004), for the proposition that “[t]he term ‘sex plus’ or ‘gender plus is simply a heuristic…developed in the context of Title VII to affirm that plaintiffs can, under certain circumstances, survive summary judgment even when not all members of a disfavored class are discriminated against.” Indeed, the Second Circuit in Back also referred to the “sex plus” theory of discrimination as a “judicial convenience.”
This being the case, how could the Seventh Circuit fail to address Coffman’s “gender plus” argument on the ground that she failed to develop it if it is simply a heuristic and judicial convenience? Under this reasoning shouldn’t the court have found that Coffman’s “gender plus” discrimination claim was really just a gender discrimination claim and addressed it on the merits? In fairness, the Seventh Circuit also found in dicta that Coffman failed to provide evidence required under a “sex plus” theory of discrimination even if such a theory existed, but that should have been its holding, not that the Seventh Circuit continues to fail to recognize such a theory.