BROOKLYN, N.Y. (CN) - A federal judge ruled that administrators at a Brooklyn school may have retaliated against a counselor who objected to comments that he should not use Lego bricks with his students, "being a gay man."
John Birkholz, a 62-year-old guidance counselor, brought a union grievance against P.S. 81 in January 2008, after administrators forced him to share an office with another teacher. Though he won the grievance, Birkholz said he was not given his own office until Sept. 5, 2008.
About 2 months later, Birkholz says, he was called into a meeting in which P.S. 81 Principal Genevieve Ventura and two assistants told him to put away his Legos.
"He was told that he could not use the blocks especially with the older grades, since 'it was a waste of time,' and 'it would not look good for you being a gay man," according to his federal complaint.
Birkholz says he was also told that "several fifth-grade teachers did not want their students to be counseled by a gay man," and that he was slurred as "light in the loafers."
His complaint does not specify which administrator made which remark.
Birkholz claims that Ventura told him and another counselor in June 2009 that they were being "excessed" due to lack of funding.
Birkholz says he fought dismissal after he found out that the decision violated his union contract, and says he learned later that the school did not face budget cuts.
He claims administrators continued to create a hostile work environment, and showed him no compassion in the wake of back-to-back personal tragedies.
Birkholz got into a car accident on Sep. 23, 2009, and his mother died the next day, according to his complaint. He claims that Ventura hounded him on his voicemail and called the funeral home to press him about his absences.
He also claims he was denied wages for subsequent medical leaves.
He sued New York City and its Department of Education in October, 2010, alleging disparate treatment, hostile work environment, constructive discharge and retaliation.
City lawyers sought dismissal on grounds that "Title VII does not prohibit harassment or discrimination because of sexual orientation."
While agreeing that that was technically true, U.S. District Judge Nicholas Garaufis ruled that the statute protects employees who oppose discrimination based on sexual orientation.
"[S]exual orientation is not a protected class for purposes of Title VII's substantive anti-discrimination provision," Garaufis wrote in his 26-page order. "However, federal courts are divided on the question of whether opposing discrimination based on sexual orientation can constitute protected activity under Title VII's retaliation provision. The Ninth Circuit and two district courts in the Second Circuit have answered that question in the affirmative. ... The Sixth and Seventh Circuits have reached the opposite conclusion."
Garaufis sided with those who think it does.
"The court's conclusion is bolstered by the fact that, in the State and City of New York, 'the law' does protect employees from workplace discrimination due to sexual orientation," Garaufis wrote. "... Moreover, gender stereotyping - that is, discrimination based on the plaintiffs non-conformity with gender stereotypes - is unlawful gender discrimination under Title VII."
Although charges against the city were dismissed, the Board of Education remains on the hook for federal retaliation claims, and state and local law claims for hostile work environment and disparate treatment.
City attorney Blanche Greenfield accentuated the positive, in an email to Courthouse News.
"We are pleased that the plaintiff's gender and age discrimination claims, as well as the claim that he was constructively discharged, were dismissed," Greenfield said.
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