In a little noticed decision issued a couple of months ago, the First Circuit reinstated a bisexual plaintiff’s employment discrimination claims under the Maine Human Rights Act, reversing the district court’s dismissal on summary judgment. The decision is remarkable because, as I and Dr. Karen Yescavage discuss in our recent law review article, despite the fact that bisexuals experience significant levels of discrimination, they rarely sue. Even more concerning is the fact that, when they do sue, they almost never succeed. Indeed, the only employment discrimination case Dr. Yescavage and I found in which a bisexual plaintiff had ultimately succeeded on the merits was decided by a British court. To be sure, the First Circuit decision in Flood v. Bank of America Corp., 780 F.3d 1 (1st Cir. 2015), is not a final victory for Shelly Flood. Instead, it only means that she may present her evidence to a jury, but, given the dearth of case law involving bisexual plaintiffs, it is highly significant.
The evidence supporting Shelly Flood’s termination and harassment claims (both rooted in allegations of sexual orientation discrimination) appears fairly strong. Ms. Flood presented evidence to the effect that one of her supervisors (who was also her assigned mentor) began to treat her drastically differently upon learning that Ms. Flood was having a romantic relationship with a woman and that this supervisor enlisted other bank administrators to engage in similar treatment. The negative treatment Ms. Flood describes includes suddenly receiving poor performance evaluations, being subjected to retroactive changes in evaluations, and receiving “cold stares . . . and disparaging comments about [her] eating habits, dress, and hair style.” 780 F.3d at 13. According to Ms. Flood, this negative treatment eventually reached such an egregious level that she could no longer bring herself to go into work.
The First Circuit held that the district court had wrongly dismissed the discharge claim because it erroneously interpreted the claim as one of constructive discharge (rather than actual discharge) and that it had wrongly dismissed the harassment claim based on its mistaken conclusion that the harassment was not severe or pervasive. In response to the Bank’s argument that Ms. Flood’s claim failed as a matter of law because she was “not exposed to explicitly homophobic statements or derogatory remarks,” the First Circuit noted that many employers now “know better than to spew explicitly . . . homophobic remarks . . .” and that “the absence of such blatant vitriol does not doom a claim of discrimination.” Id. at 10-11.
All in all, the First Circuit’s analysis is well-reasoned and the result, especially with respect to the harassment claim, may seem unsurprising. But, as a precedent for bisexual plaintiffs bringing sexual orientation employment discrimination claims under state laws (which tend to be similar in structure to federal law), this case is huge news. To be sure, the case involved a fairly straightforward type of discrimination—homophobia. As Dr. Yescavage and I discuss, bisexuals appear to be subject to two primary forms of discrimination: homophobia and biphobia, the latter of which involves fear and discomfort specifically related to bisexuality. Biphobia may be particularly hard for courts to understand, as the limited case law suggests. See, e.g., Apilado v. North Am. Gay Ameteur Athletic Alliance, 2011 WL 5563206, at *1–3 (W.D. Wash. Nov. 10, 2011). However, the significance of Flood should not be underestimated. For now, it stands as the strongest precedent available for bisexual victims of employment discrimination in the United States.