Discrimination Based On Sexual Orientation = Unlawful Gender Stereotyping Under Title VII?
Brian complains to you that he is being discriminated against and harassed. He explains that he does not "fit in" with the other men at work. He describes his typical male co-worker as wearing blue jeans and t-shirts, rough around the edges, likes hunting, fishing and sports, and drinks beer but not gin and tonic. Brian explains that he has a high voice, wears dressy clothes, files his nails instead of ripping them off with a utility knife, has a rainbow decal on the trunk of his car, and likes art, music and interior design. Brian tells you that he is homosexual and has been "outed" at work. Ever since then, according to Brian, he has overheard conversations between co-workers and his supervisor who disapprove of how Brian lives his life. He has also found anonymous prayer notes indicating that he was a sinner. Brian alleges that he has been shunned at work and that his work environment has become extremely stressful. Not long after, Brain’s supervisors terminate his employment for lack of work.
Could your company be at risk of violating federal law?
As most employers know, Title VII prohibits discrimination in employment "because of sex," but does not prohibit discrimination because of sexual orientation. Historically, courts dismissed claims filed by gay, lesbian or bisexual employees who based their claim of discrimination on their sexual orientation. In recent cases, however, courts are allowing gay, lesbian and bisexual employees to pursue claims of sex discrimination based on "gender stereotyping" under Title VII. The scenario above comes straight from a case out of Pennsylvania – Brian Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009). After his termination, Brian sued claiming that he was harassed and wrongfully terminated due to his sex, and was retaliated against for engaging in protected activity. The employer responded that Brian’s suit should be dismissed because it was merely a claim for sexual orientation discrimination -- which is not a protected category under Title VII. Brian, however, argued that he was the victim of "gender stereotyping" in that he was an effeminate man and his mannerisms caused him to be treated differently from the other men at work. Ultimately, the court decided that Brian had a valid claim of discrimination because of sex, and his lawsuit could go forward.
Gender Stereotyping – Where It All Began
The idea of "gender stereotyping" being actionable as sex discrimination was established in the United States Supreme Court case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, Ann Hopkins, a senior manager at Price Waterhouse, was denied partnership and sued claiming she was discriminated against on the basis of her sex. The year Hopkins was up for partner, she was the only woman out of 88 candidates. Despite securing major contracts with greater success than any other candidate, Hopkins was denied partnership for "lack of interpersonal skills." Apparently, while clients viewed her aggressiveness and attention to detail favorably, staff members complained that Hopkins was "abrasive" and "brusque." At the same time, there were written comments – submitted by partners when Hopkins was a partnership candidate – that reflected sexual stereotyping. For example, partners described Hopkins as "macho" and in need of "a course at charm school." Partners complained of Hopkins’ use of profanity "because it’s a lady using foul language." And one of Hopkins’ supervisors advised her that, to improve her chances for partnership, she should "walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry." Price Waterhouse argued that it had a legitimate, non-discriminatory reason for its employment decision (Hopkins’ lack of interpersonal skills) and that it did not violate Title VII.
The Supreme Court disagreed. The Court’s opinion stated that it did not "require expertise in psychology to know that, if an employee’s flawed ‘interpersonal skills’ can be corrected by a soft-hue suit or a new shade of lipstick, perhaps it is the employee’s sex and not her interpersonal skills that has drawn the criticism." The Court determined that by engaging in sex stereotypes, Price Waterhouse violated Title VII by denying Ms. Hopkins partnership.
Does Unlawful Gender Stereotyping Cover Sexual Orientation?
Since Price Waterhouse, courts have recognized the availability of the gender stereotyping theory as a valid method of establishing discrimination "because of sex." Courts readily recognize that Title VII does not create a cause of action for discrimination based on sexual orientation. However, as a Virginia court recently explained:
Of course, it is often difficult to draw the distinction between discrimination on the basis of gender stereotyping and discrimination on the basis of sexual orientation. . . . Stereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality. . . . The distinction is further complicated by a trend of advice encouraging homosexual plaintiffs who are discriminated against based on their sexual orientation to bring Title VII claims under a gender-stereotyping theory.
Henderson v. Labor Finders of Virginia, et al., Civil Action No. 3:12cv600, United States District Court for the Eastern District of Virginia (April 2, 2013). The Virginia court also cited an article, entitled How the Effeminate Male Can Maximize His Odds of Winning Title VII Litigation, 55 Syracuse L. Rev. 1117 (2003) which explained that: "[G]ay plaintiffs bringing claims under Title VII should emphasize the gender stereotyping and de-emphasize any connection the discrimination has to homosexuality."
In recent opinions, the Equal Employment Opportunity Commission has also been clear that its position is that claims by lesbian, gay and bisexual individuals alleging gender stereotyping state a sex discrimination claim under Title VII. For example, in Veretto v. USPS, No. 0120110873 (July 1, 2011), a gay man alleged that he was harassed because he intended to marry a man rather than a woman, and the EEOC determined that this was a valid case of sex stereotyping under Title VII.
What Should Employers Do?
Employers may find themselves increasingly defending lawsuits from gay, lesbian and bisexual employees claiming discrimination based on gender stereotyping. As discussed above, while federal law does not explicitly prohibit discrimination based on sexual orientation, courts are increasingly allowing claims based on gender stereotyping to proceed to litigation. In addition, 21 states, the District of Columbia and many cities (including Atlanta, Georgia) expressly prohibit discrimination on the basis of sexual orientation. Other states are moving in this direction: in January of this year, the Virginia Senate approved legislation that would prohibit the state government from discriminating against employees based on sexual orientation (the bill now goes to the Virginia House of Delegates). And although attempts to pass federal legislation that would expressly outlaw discrimination based on sexual orientation in private workplaces have been unsuccessful to date, more members of Congress support such a bill each year.
To avoid costly litigation, employers need to make certain that employment decisions are based upon legitimate business factors and not upon biases and stereotypes. Employers should be careful not to ignore claims of discrimination or harassment based on sexual orientation, as these claims can evolve into allegations of gender stereotyping and become actionable under Title VII.
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