Judge tosses Winn-Dixie trucker's case

Judge tosses Winn-Dixie trucker's case
Ann Rostow, Gay.com / PlanetOut.com Network
Tuesday, September 17, 2002 / 05:34 PM
SUMMARY: On Monday, a federal judge in New Orleans dismissed a suit against grocery giant Winn-Dixie filed by truck driver who was fired for cross-dressing.

On Monday, a federal judge in New Orleans dismissed the lawsuit filed by truck driver Peter Oiler against the Winn-Dixie grocery chain. Oiler worked for Winn-Dixie for 21 years before the company learned that he cross-dressed in his spare time.

Oiler, a heterosexual who has been married since 1977, was immediately told to start looking for a new job, and he was fired a few months later, in January of 2000.

Brought by the American Civil Liberties Union nearly two years ago, the suit claimed primarily that Oiler's dismissal was a violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination in the workplace because of a range of factors, including "sex," and in 1989, the U.S. Supreme Court ruled that the concept of "discrimination because of sex" embraced the case of a woman who failed to make partner at Price Waterhouse on account of her masculine style.

"In forbidding employers to discriminate against individuals because of their sex," wrote the 1989 Supreme Court justices, "Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes."

In the Oiler case, however, Judge Lance Africk was not swayed by the Supreme Court's reasoning. The Price Waterhouse plaintiff, wrote Africk, "may not have behaved as the partners thought a woman should have, but she never pretended to be a man or adopted a masculine persona."

Africk did not, however, explain the legal significance of these distinctions. He rather implied without evidence that cross-dressing somehow put Oiler beyond the reach of the law's ban on sexual stereotyping.

Africk grounded his dismissal on a 1984 case, Ulane v. Eastern, where the U.S. Court of Appeals for the 7th Circuit ruled that transsexuals were not covered under Title VII. His decision runs counter to a trend in recent years, when several federal appellate courts have relied on the Price Waterhouse case, rejecting Ulane and similar rulings from the 1970s.

Sixteen years after Ulane, (in a decision that involved different issues), the 7th Circuit itself noted that discrimination "for failing to live up to dominant male stereotypes" is a violation of Title VII.

Judge Africk also dismissed Oiler's claim of disparate treatment. Oiler noted that female Winn-Dixie employees were free to dress in male attire, while he was fired for the same offense. But Africk ruled that no female employee was free to take on a male persona and pass as male.

The ACLU has not announced plans to appeal, but is "keeping all options open." Nonetheless, it would be highly unusual for the ACLU to abandon fundamental civil rights litigation at the district court level. A petition to the U.S. Court of Appeals for the 5th Circuit remains a possibility.

click here for ACLU Press Release

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