Better than nothing: employment rights for LGBTQ employees expand under sex gender stereotyping but fall short of equality

Presentation to GBN in Ferndale by Daniel Gwinn 11-19-2014

Stereotyping people because of their sexual orientation is wrong. It’s particularly egregious in the workplace, where LGBTQ people are typically discriminated against and where their rights to equal employment are not honored. LGBTQ activists and their supporters have fought to discredit disparaging stereotypes. But the gains that have been made in securing LGBTQ rights to equal employment opportunities are due, at least in part, from the very stereotypes the community has fought to dislodge. Recently, sex-gender stereotyping cases have given a degree of legal protection to LGBTQ employees. It’s not equality, but it’s a start.

Employment discrimination statutes intentionally omitted protections for LGBTQ people. The Civil Rights Act of 1964 did not include sexual orientation as a protected category. The landmark statute prohibited discrimination on the basis of “race, color, religion, sex, or national origin.” Early cases held Title VII’s protection applied to employees only because of their “anatomical characteristics.” Congress failed to pass the Employment Non-Discrimination Act (ENDA), which would have prohibited employment discrimination based upon sexual orientation and gender identity.

The progress that has been made has come largely from the courts. The advance toward LGBTQ equal employment rights began quietly. Unlike the loud and violent protests that erupted at the Stonewall Riots and ACT-UP demonstrations, the march toward workplace equality originated from a dispute having nothing to do with LGBTQ rights. Like the proverbial tree falling in the forest with no one around to hear it, a 1989 case, Hopkins v. Price-Waterhouse, had no initial impact on LGBTQ employment rights.

Ann Hopkins, a senior manager at Price Waterhouse, was up for promotion to partnership. At a meeting discussing her eligibility for the position, the senior partners told Ms. Hopkins she was “too macho.” Others at the firm chimed in that Ms. Hopkins would have been an appropriate candidate had she “taken a course in charm school,” worn makeup, and had her hair styled. Ms. Hopkins was denied the promotion and later filed suit. The Supreme Court of United States held it was Ms. Hopkins’ gender that had triggered the denial of her partnership. “An employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”

Other than its plain statement of the obvious stereotypes regarding feminine appearance and behavior, the Price-Waterhouse case was unremarkable from a LGBTQ rights perspective. Then, in 1998, in Oncale v. Sundowner Offshore Services, the Supreme Court held that Title VII protected the victims of same-sex workplace harassment. Mr. Oncale was heterosexual, but his male co-workers on an oil rig called him gay and humiliated him in a sexually offensive manner. He sued, claiming that Title VII protected him from same-sex sexual harassment.

The Court held that while “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII, statutory provisions often go beyond the principal evil to cover reasonably comparable evils.” The Court thus affirmed Mr. Oncale’s right to sue because of his sex, not because of his sexual orientation. As in Price-Waterhouse, the Court resolved an issue seemingly unrelated to LGBTQ workplace equality.

But subsequently, in Bibby v. Philadelphia Coca Cola Bottling Company, a same sex harassment claim was denied. In Bibby, a gay employee alleged that his co-worker assaulted him in the company locker room, shouting “everybody knows you’re gay as a three dollar bill.” In 2001, the court dismissed Mr. Bibby’s case, holding that Mr. Bibby was harassed because of his sexual orientation, not because of his sex. Two men. One straight. One gay. Both victimized by same-sex harassment at work. Only Mr. Oncale’s case was allowed to proceed–because he was heterosexual.

Gradually, however, sex gender stereotyping cases emerged from the Price Waterhouse and Oncale decisions. Courts began to validate allegations that employers who subjected employees to adverse employment action because of their gender nonconforming conduct or appearance violated Title VII. While not the first sex gender stereotyping case, the 2009 case of Prowel v. Wise Business Forms, Inc., illustrates the change in the court’s analysis.

In Prowel, the plaintiff employee presented evidence of employment discrimination both because he was gay and because he failed to conform to gender stereotypes. The trial record included evidence of Mr. Prowel’s high-pitched voice, meticulous grooming, and fashionable attire as examples of his nonconforming male behavior. Mr. Prowel testified he talked about art, music, and interior design at work, and punched the buttons on his workplace equipment with “pizzazz.” The court held that the employer’s responses to Mr. Prowel’s nonconforming gender behavior and appearance were based on sex and violated Title VII.

Cases factually similar to Prowel have resulted in similar victories. Sexual stereotyping cases grant a viable cause of action for LGBTQ people because the courts have now recognized that discrimination based on gender nonconforming behavior or appearance is discrimination based on sex.

LGBTQ people continue to be denied full employment rights. The sex gender stereotyping theory, while helpful, has not brought equality. Not all LGBTQ people are gender nonconforming. By adhering to roles traditionally associated with their biological genders, it would be difficult for “straight-acting” gay men and “femme” lesbians to produce evidence that an adverse employment decision was based upon sex gender stereotyping. But in a strange twist, under the sex gender stereotyping theory, the very stereotypes unfairly cast upon the LGBTQ community have opened avenues toward full equality and freedom.

By: Daniel A. Gwinn, Esq.