The Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex. That includes discrimination against employees who fail to conform to gender stereotypes. But the Civil Rights Act offers no explicit protections against discrimination on the basis of sexual orientation and many courts have refused to allow suits alleging discrimination because of anti-gay bias, even if that bias was born out of gender stereotypical views.
But the Second Circuit opened the door to just such a challenge on Monday, ruling that a gay employee who suffered homophobic harassment could pursue a Title VII lawsuit against his employer.
Sex, Gender, Orientation, and Employment Discrimination
Courts have grappled with the Civil Rights Act's sex discrimination provisions for years. As many cases have noted, there is little legislative history to look at. The prohibition on sex discrimination was added at the last minute, by an opponent of the bill, in hopes that it would torpedo the Act. It didn't.
In Price Waterhouse v. Hopkins, the Supreme Court ruled that discriminating against an employee because they do not conform to gender stereotypes counted as discrimination because of gender. In that case, the plaintiff, Ann Hopkins, had been repeatedly denied a promotion to partner because of her unfeminine ways. Her employee reviews told her that, should she want to advance, she needed to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." Her male colleagues received no such fashion advice.
For LGBT workers seeking protection against discrimination, Price Waterhouse seemed like the answer. Much anti-gay discrimination, after all, involves explicit gender stereotyping; the harassment of gay men for their supposed femininity, for example.
But even when applied to the most gender conforming LGBs, the butchest gaybro or the most lipsticked of lesbians, anti-gay discrimination still is based on gender: the view that men should not be attracted to men, women to women. You don't have to be Judith Butler to realize that the regulation of gender and sexuality are intimately related.
This argument didn't pass in the courts. Just a few years ago, in 2000's Simonton v. Runyon and 2005's Dawson v. Bumble & Bumble, the Second Circuit ruled that the Civil Rights Act cannot support claims of sexual orientation discrimination. That lead to the prospect that a straight woman who was fired for being too strong-willed or bossy could bring a claim, while a lesbian who was discriminated against for being insufficiently feminine may have her similar claim tossed out.
Making the Roadblocks Roadblocks No More
Enter Matthew Christiansen and Christiansen v. Omnicom Group. Christiansen, who is openly gay, sued his employer alleging that that he was discriminated against due to his failure to conform to gender norms and his HIV status. Alleged offenses included sexually explicit drawings of Christiansen and statements that Christiansen "was effeminate and gay so he must have AIDS."
Christiansen's complaint, the district court ruled, advanced a sexual orientation discrimination claim, and it tossed it out.
The Second Circuit, however, reversed, ruling that Christiansen's suit could go forward. Noting it did not have the power to reconsider Simonton or Dawson, as a three-judge panel, the court nonetheless found that those precedents weren't fatal to Christiansen's case. "Christiansen's complaint identifies multiple instances of gender stereotyping discrimination," the court explained, and his sexual orientation shouldn't prohibit him from advancing those claims.
While Simonton ruled that Price Waterhouse "would not bootstrap protection for sexual orientation into Title VII," it did not preclude LGBT workers from pursuing gender stereotyping claims, the court explained. Dawson, similarly, while rejecting a suit alleging anti-gay discrimination, noted that, as this court put it, "the sexual orientation of the plaintiff in Price Waterhouse was of no consequence."
In sum, gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals. Simonton and Dawson merely hold that being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim.
The ruling opens the door for further protection of LGBT workers under the Civil Rights Act, so long as their discrimination claims involve gender stereotyping. But, as Chief Judge Robert A. Katzmann and District Judge Margo K. Brodie, sitting by designation, argued in their concurrence, there are persuasive arguments that sexual orientation discrimination is, gender stereotyping or not, discrimination because of sex. The Second Circuit should, "when the appropriate occasion presents itself," "revisit the central legal issue confronted in Simonton and Dawson."