William A. Blackwell v. United States Department of the Treasury ( 1987 )

Opinion for the Court filed by Circuit Judge RUTH B. GINSBURG.

Opinion concurring in the judgment filed by Circuit Judge NIES.

RUTH BADER GINSBURG, Circuit Judge:

The district judge found that plaintiff-appellant Blackwell suffered discriminatory denial of a government employment opportunity because the supervisory officer who served as second interviewer, Mr. Strange, perceived Blackwell to be a homosexual. Blackwell v. U.S. Dep’t of the Treasury, 656 F.Supp. 713, 715 (D.D.C.1986). We agree with the district court that there is no precedent for holding that one’s sexual orientation or preference falls within the compass of the Rehabilitation Act, 29 U.S.C. §§ 701-796. Cf. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973) (Title VII’s prohibition of discrimination on account of “national origin” does not embrace discrimination on account of alienage). Accordingly, we affirm the district court’s judgment.

We vacate the district court’s opinion, however, because it appears to state that relief under the Rehabilitation Act is conditioned upon a complainant’s giving the interviewing officer precise notice of a handicap that is not “automatically apparent.” 656 F.Supp. at 715. Such a notice requirement draws no support from any cited authority and is in tension with the regulatory admonition against asking the prospective employee whether he or she is handicapped. See 29 C.F.R. § 1613.706(a). Furthermore, the liability of a government department under the Act should not turn on the level of sophistication or ability to classify of the particular interviewing officer — in this case, on whether that officer knows that homosexuality and transvestism are not one and the same.

For the reasons stated, the district court’s opinion, reported at 656 F.Supp. 713, is vacated, but that court’s judgment dismissing the complaint is affirmed.

It is so ordered.