In First-of-Its Kind Ruling, Washington Appeals Court Says Anti-Gay Job Discrimination Violates U.S. Constitution

Affiliate: ACLU of Washington
July 18, 2002 12:00 am

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SPOKANE, WA – A Washington state appeals court today unanimously ruled that firing public employees because they are gay violates the U.S. Constitution, which the American Civil Liberties Union said is the first ruling of its kind from any appeals court in the country.

The ACLU initially filed its state lawsuit against Pullman Memorial Hospital in 1996 on behalf of Mary Jo Davis, a sonographer who was subjected to severe and ongoing anti-gay harassment, then fired. A lower court dismissed the case, effectively saying that the U.S. Constitution offers no refuge for lesbians and gay men who face discrimination by government agencies. Today, the Washington Court of Appeals disagreed in an 11-page decision.

“[A] state actor violates a homosexual employee’s right of equal protection when it treats that person differently than it treats heterosexual employees, based solely upon the employee’s sexual orientation,” the court ruled.

“This is a historic ruling,” said Matt Coles, Director of the ACLU Lesbian & Gay Rights Project. “For the first time, an appeals court is saying that it’s just plain unconstitutional for a government agency to fire someone for being gay.”

Today’s ruling sets a “powerful precedent,” Coles said, and will now send Davis’ case back to trial. She will be able to sue both the hospital and Dr. Charles Guess, the chief radiologist, who harassed her routinely. Guess constantly referred to Davis as a “f-king dyke” and “f-king faggot,” and told another doctor, “I don’t think that f-king faggot should be doing vaginal exams, and I’m not working with her.” When Davis complained, Guess told hospital administrators that he didn’t “agree with Mary Jo Davis’ lesbian lifestyle.” Rather than discipline Guess, the hospital punished Davis – reducing her work hours to three-quarters time so Guess wouldn’t have to work with her. Finally, in 1994, Davis was fired.

At the appeals court, Guess claimed that even if it were unconstitutional to fire to Davis for being a lesbian, he couldn’t be expected to know that and therefore should be immune from legal responsibility. The court disagreed strongly: “The law is well established that intentional and invidious discrimination against an individual because he or she is a member of an identifiable class, violates that person’s right to equal protection. That proposition was as evident in 1994 as it is today.”

According to the ACLU, today’s ruling will help lesbians and gay men nationwide. “Mary Jo Davis was a good employee. She was subjected to a hellish work environment, then finally fired, because she is a lesbian,” said Ken Choe, the ACLU Lesbian & Gay Rights Project attorney handling the case. “All over this country, people face discrimination because of their sexual orientation. It’s particularly wrong when it’s the government that does it — and this decision is now one of our most powerful weapons in fighting it.”

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