Frederic Deneffe is a 51-year-old gay male who was terminated from his employment as an airline pilot with SkyWest Inc. He filed a lawsuit under Title VII, claiming that he was fired for failure to conform to stereotypes of what “a man” is. The court recently denied the airline’s motion to dismiss and sided with Deneffe:
Both parties acknowledge that the Tenth Circuit has not recognized a Title VII claim for discrimination based on sexual orientation, and that Deneffe’s Title VII claim is premised on Deneffe’s failure to conform to gender stereotypes. While the Tenth Circuit has not decided whether discrimination based on an employee’s failure to conform to sex stereotypes always constitutes discrimination “based on sex,” the court has assumed that a transsexual who alleged, as a biological male, she did not act or appear as a male is expected to act or appear established a prima facie case of gender stereotyping under a Rule 56 analysis. Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1224 (10th Cir. 2007).
SkyWest argues that Deneffe’s complaint fails to state how he did not conform to male stereotypes. Deneffe counters that the following allegations support his claim: (1) he did not take part in male braggodicio about sexual exploits with women as the other male pilots did; (2) he did not joke about gays as other male pilots did, (3) he submitted paperwork to SkyWest designating his male domestic partner for flight privileges, a benefit offered only for family members and domestic partners; and (4) he traveled on SkyWest flights with his domestic partner. Surreply, docket #64 at 5. The Court finds that these alleged facts, together with Deneffe’s allegation that the conduct by other male pilots was “regular,” “frequent,” and occurred during “many” flights, suffice to state a plausible claim that the chief pilot submitted a negative PRIA employment reference based on Deneffe’s failure to conform to male stereotypes. See id.; see also E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 731 F.3d 444, 456 (5th Cir. 2013) (permitting the plaintiff to rely on evidence that a supervisor viewed the claimant as “insufficiently masculine” to prove its Title VII claim).
We fully support this line of argument. Failure to conform to gender (i.e. sex stereotypes) should never be grounds for termination from employment.