DeSantis v. Pacific Tel. & Tel. Co., Inc.
| Decision Date | 31 May 1979 |
| Docket Number | Nos. 77-1109,77-1204 and 77-1662,s. 77-1109 |
| Citation | 608 F.2d 327 |
| Parties | 19 Fair Empl.Prac.Cas. 1493, 19 Empl. Prac. Dec. P 9271 Robert DeSANTIS, Bernard Boyle, and all others similarly situated, Plaintiffs-Appellants, v. PACIFIC TELEPHONE AND TELEGRAPH CO., INC., a corporation, et al., Defendants-Appellees. Donald STRAILEY, Plaintiff-Appellant, v. HAPPY TIMES NURSERY SCHOOL, INC., a California Corporation, Wilda Lundborg, President and Director, and Does 1 through 10, Defendants-Appellees. Judy LUNDIN and Barbara Buckley, Plaintiffs-Appellants, v. PACIFIC TELEPHONE AND TELEGRAPH CO., INC., and the Communication Workers of America, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Page 327
Dec. P 9271
situated, Plaintiffs-Appellants,
v.
PACIFIC TELEPHONE AND TELEGRAPH CO., INC., a corporation, et
al., Defendants-Appellees.
Donald STRAILEY, Plaintiff-Appellant,
v.
HAPPY TIMES NURSERY SCHOOL, INC., a California Corporation,
Wilda Lundborg, President and Director, and Does 1
through 10, Defendants-Appellees.
Judy LUNDIN and Barbara Buckley, Plaintiffs-Appellants,
v.
PACIFIC TELEPHONE AND TELEGRAPH CO., INC., and the
Communication Workers of America, Defendants-Appellees.
Ninth Circuit.
Rehearing Denied July 12, 1979.
Page 328
Richard Gayer, San Francisco, Cal., for plaintiffs-appellants.
Harold R. Crookes, San Francisco, Cal., William H. Ng, Atty., Washington, D. C., for defendants-appellees.
Appeal from the United States District Court for the Northern District of California.
Before CHOY and SNEED, Circuit Judges, and BONSAL, * District Judge.
CHOY, Circuit Judge:
Male and female homosexuals brought three separate federal district court actions claiming that their employers or former employers discriminated against them in employment decisions because of their homosexuality. They alleged that such discrimination violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1985(3). The district courts dismissed the complaints as failing to state claims under either statute. Plaintiffs below appealed. Because of the similarity of issues involved, this court consolidated the appeals at the request of counsel for appellants. We affirm.
I. Statement of the Case
A. Strailey v. Happy Times Nursery School, Inc.
Appellant Strailey, a male, was fired by the Happy Times Nursery School after two years' service as a teacher. He alleged that he was fired because he wore a small gold ear-loop to school prior to the commencement of the school year. He filed a charge with the Equal Employment Opportunity Commission (EEOC) which the EEOC rejected because of an alleged lack of jurisdiction over claims of discrimination based on sexual orientation. He then filed suit on behalf of himself and all others similarly situated, seeking declaratory, injunctive, and monetary relief. The district court dismissed the complaint as failing to state a claim under either Title VII or § 1985(3).
B. DeSantis v. Pacific Telephone & Telegraph Co.
DeSantis, Boyle, and Simard, all males, claimed that Pacific Telephone & Telegraph Co. (PT&T) impermissibly discriminated against them because of their homosexuality. DeSantis alleged that he was not hired when a PT&T supervisor concluded that he was a homosexual. According to appellants' brief, "BOYLE was continually harrassed by his co-workers and had to quit to preserve his health after only three months because his supervisors did nothing to alleviate this condition." Finally, "SIMARD was forced to quit under similar conditions after almost four years of employment with PT&T, but he was harrassed by his supervisors (as well) . . . . In addition, his personnel file has been marked as not eligible for rehire, and his applications for employment were rejected by PT&T in 1974 and 1976." Appellants DeSantis, Boyle, and Simard also alleged that PT&T officials have publicly stated that they would not hire homosexuals.
These plaintiffs also filed charges with the EEOC, also rejected by the EEOC for lack of jurisdiction. They then filed suit on
Page 329
behalf of themselves and all others similarly situated seeking declaratory, injunctive, and monetary relief under Title VII and § 1985(3). They also prayed that the district court issue mandamus commanding the EEOC to process charges based on sexual orientation. The district court dismissed their complaint. It held that the court lacked jurisdiction to compel the EEOC to alter its interpretation of Title VII. It also held that appellants had not stated viable claims under either Title VII or § 1985(3).C. Lundin v. Pacific Telephone & Telegraph
Lundin and Buckley, both females, were operators with PT&T. They filed suit in federal court alleging that PT&T discriminated against them because of their known lesbian relationship and eventually fired them. They also alleged that they endured numerous insults by PT&T employees because of their relationship. Finally, Lundin alleged that the union that represented her as a PT&T operator failed adequately to represent her interests and failed adequately to present her grievance regarding her treatment. Appellants sought monetary and injunctive relief. The district court dismissed their suit as not stating a claim upon which relief could be granted. It also refused leave to amend their complaint to add a claim under § 1985(3).
II. Title VII Claim
Appellants argue first that the district courts erred in holding that Title VII does not prohibit discrimination on the basis of sexual preference. They claim that in prohibiting certain employment discrimination on the basis of "sex," Congress meant to include discrimination on the basis of sexual orientation. They add that in a trial they could establish that discrimination against homosexuals disproportionately effects men and that this disproportionate impact and correlation between discrimination on the basis of sexual preference and discrimination on the basis of "sex" requires that sexual preference be considered a subcategory of the "sex" category of Title VII. See 42 U.S.C. § 2000e-2.
A. Congressional Intent in Prohibiting "Sex" Discrimination
In Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977), plaintiff argued that her employer had discriminated against her because she was undergoing a sex transformation and that this discrimination violated Title VII's prohibition on sex discrimination. This court rejected that claim, writing:
The cases interpreting Title VII sex discrimination provisions agree that they were intended to place women on an equal footing with men. (Citations omitted.)
Giving the statute its plain meaning, this court concludes that Congress had only the traditional notions of "sex" in mind. Later legislative activity makes this narrow definition even more evident. Several bills have been introduced to Amend the Civil Rights Act to prohibit discrimination against "sexual...
To continue reading
Request your trial
-
Lewis v. Green
... ... D.J. McDuffy, Inc., 623 F.2d 1060, 1066-67 (5th Cir. 1980), aff'd ... See, e.g., Wilhelm v. Continental Tile Co., 720 F.2d 1173, 1176 (10th Cir.1983), cert ... persons not a protected class); DeSantis v. Pacific Telephone and Telegraph Co., 608 F.2d ... ...
-
Hobson v. Wilson
... ... , 641 (9th Cir.1980) (same); Dry Creek Lodge, Inc. v. United States, 515 F.2d 926, 931 (10th ... Wilhelm v. Continental Title Co., 720 F.2d 1173, 1176 (10th Cir.1983) ... 1601, 80 L.Ed.2d 131 (1984); DeSantis v. Pacific Telephone and Telegraph Co., 608 F.2d ... ...
-
Watkins v. U.S. Army
... ... as to require more exacting scrutiny,' DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 333 ... Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 ... ...
-
Beller v. Middendorf
... ... Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 607-08 n.6, 98 S.Ct. 2002, ... See, e. g., DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th ... B. K., Inc. v. Caron, 600 F.2d 710 (8th Cir. 1979), cert ... ...
-
Deposing & examining the plaintiff
...of sex, in violation of Title VII and the Washington Law Against Discrimination, and overruling DeSantis v. Pacific tel. & Tel.Co., Inc., 608 F.2d 327 (9th Cir. 1979). The Ninth Circuit also found that the verbal abuse directed at the plaintiff because he “did not act as a man should act” w......
-
Ten Troubles with Title VII and Trait Discrimination Plus One Simple Solution (A totality of the Circumstances Framework)
...239 See infra Trouble #4. 240 See, e.g. , Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984); DeSantis v. Pac. Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979). 241 See Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002). 242 Friedman, supra note 102, at 217. 243 Id. 1000 CAPIT......
-
When is sex because of sex? The causation problem in sexual harassment law.
...876 F.2d 69, 70 (8th Cir. 1989) ("Title VII does not prohibit discrimination against homosexuals."); DeSantis v. Pac. Tel. & Tel. Co., 608 F.2d 327, 329-32 (9th Cir. 1979) (rejecting the appellant's argument that Congress intended Title VII to protect against discrimination on the basis......
-
BOSTOCK WAS BOGUS: TEXTUALISM, PLURALISM, AND TITLE VII.
...1996); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (per curiam); DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 329-330 (9th Cir. 1979); Medina v. Income Support Div., N.M., 413 F.3d 1131, 1135 (10th Cir. 2005); Fredette v. BVP Mgmt. Assocs., 112 F.3......