After previously ruling that Kyle “Scott” Berghorn did have standing to sue Xerox Corporation for anti-gay discrimination in connection with his firing, U.S. District Court Judge Karen Gren Scholer on Friday, May 23, halted the case, explicitly holding that federal discrimination law excludes discrimination related to sexual orientation, according to Berghorn’s attorney, Rob Wiley.
Citing older cases, Judge Gren Scholer ruled that the “Plaintiff cannot ‘bootstrap protection for sexual orientation into Title VII’ [the federal employment anti-discrimination statute].”
Noting that the ruling came just a week before the 2019 Dallas Pride celebration, Wiley said, “This is a tremendous loss for Scott and anyone who is LGBTQ and just wants to work. People shouldn’t go to work in fear of losing their career because of who they love.”
Noting that Berghorn’s case was based on the fact that he was fired for not fitting “normal” gender stereotypes, Wiley said, “Discrimination based on gender stereotypes is illegal; that’s a bedrock principle of modern gender discrimination law. You can’t fire a woman because she’s too masculine or aggressive, and you can’t fire a man because you believe he’s effeminate or not masculine enough.
“In a 2013 case against construction company Boh Brothers, our court of appeals held that calling a male worker ‘faggot’ and ‘princess’ was illegal discrimination based on gender stereotypes. Those insults are pretty specific to taunting someone as gay. So, we believed Xerox broke the law when it fired Scott because he is gay, but the court disagreed,” Wiley said.
He continued, “We had hoped the Dallas court would follow recent rulings that gay men are protected from discrimination based on gender stereotypes. This includes other federal courts, the U.S. Equal Employment Opportunity Commission and the Obama administration’s Department of Justice.”
Wiley said that officials at Xerox said Berghorn was fired because he had used his corporate credit card for personal expenses, even though numerous witnesses said that doing so was a common practice and was allowed as long as the employee promptly reimbursed the company, which Berghorn had.
“Scott’s supervisor testified it was common for other employees to put personal charges on the corporate card, one guy had even put his truck payments on the card,” Wiley said. “Xerox’s own expense software let you flag payments as personal and reimburse them. We actually got a whole spreadsheet from Xerox of employees who put personal expenses on the corporate card.
“But the only two that Xerox fired were Scott and Eduardo Lopez, another guy Xerox thought was gay,” Wiley continued. “And Scott had always been an excellent employee. We felt we had a really strong case that the real reason Xerox fired Scott was prejudice and hate.”
Wiley noted that “conservative activists” Carl Ichan and Darwin Deason, both of whom “have track records of zealousy supporting extreme right-wing causes,” have been the two largest shareholders of Xerox over the last year.
The Supreme Court recently announced it will address whether LGBTQ workers are covered by federal anti-discrimination law in its 2019-20 session. This case is Berghorn v. Xerox Corporation, and was filed in the Northern District of Texas, which incudes Dallas, Fort Worth, Abilene, Amarillo, San Angelo, and the surrounding counties.
Rob Wiley, P.C., based in Dallas, represents workers in lawsuits against employers. Wiley founded the Dallas LGBT Bar Association and served as its first president. Wiley and attorney Rasha Zeyadeh acted as lead counsel in this case.