In Other News: Sex Means Sex

For years, we have believed that Title VII of the Civil Rights Act of 1964, the federal workplace anti-discrimination law that prohibits unequal treatment in the terms and conditions of employment based on a person’s race, sex (gender), religion, color, and national origin, nonetheless did not protect against sexual orientation discrimination. The courts have said that it does not, primarily because sexual orientation is not included in the statute. The courts have said that “because of sex” under Title VII includes sexual harassment—that still ugly and apparently rampant psycho-social malpractice now being outed at light speed against the rich and powerful. The courts have also said that harassing someone because she or he does not conform to gender norms or stereotypes is “because of sex” under the law. But this never seemed to include stereotypes about who people ought to couple with in their personal lives, who their life partners could be, who their sexual partners could be, their loved ones. That was a bridge too far. Until Judge Cathy Bissoon issued her opinion that sexual orientation discrimination in the workplace precisely violates Title VII’s prohibition against gender stereotyping, against a backdrop of hostile work environment facts that, no matter one’s political or religious beliefs, are about as offensive and objectionable as it gets. Judge Bissoon.

First, a bit of legislative history. Because sexual orientation discrimination was not included in the Civil Rights Act of 1964, on May 14, 1974, Reps. Bella Abzug and Ed Koch introduced the “Equity Act,” which would have added sexual orientation and gender identity to the protected classes specified in the Civil Rights Act, including Title VII, thus prohibiting discrimination in employment and public accommodations. The bill died in June 1974 but was reintroduced in May 2017. The Employment Non-Discrimination Act (ENDA) was first introduced in June 1994 to accomplish the same goals, but focused on employment—adding to Title VII’s protected classes, sexual orientation and gender identity. ENDA has gone nowhere, so lawyers have had to plead their clients’ cases as gender stereotyping cases in order to get into court.

Back to Judge Bisoon’s opinion. Dale Baxley worked as a telemarketer for Scott Medical Health Center. His supervisor was Robert McClendon. Baxley alleged that McClendon subjected him to harassing, offensive comments including calling him, “fag,” “faggot,” “fucking faggot,” and “queer,” and stating, “fucking queer can’t do your job.” This occurred three to four times a week, and upon learning that Baxley is gay and has a male partner, McClendon made statements such as “I always wondered how you fags have sex,” and “I don’t understand how you fucking fags have sex,” and “Who’s the Butch and who’s the Bitch?” For the avoidance of doubt, offensive remarks like these towards heterosexuals have long been violations of Title VII that employers approach with a “zero tolerance” policy: this gets you fired.

The Equal Employment Opportunity Commission instituted the lawsuit against Scott Medical Health Center after it first investigated Charges of discrimination brought by five of Baxley’s female co-workers who had alleged hostile work environment discrimination, whose investigations had uncovered Baxley’s facts too. In those five other charges, the women had been subjected to unwanted touching, offensive remarks, and disfavorable employment decisions by McClendon. He picked on everyone.

Judge Bisoon’s holding must be quoted, because I believe her opinion is likely to become the law in other jurisdictions absent technical arguments to the contrary.

There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. As the EEOC states, “discriminating against a person because of the sex of that person’s romantic partner necessarily involves stereotypes about ‘proper’ roles in sexual relationships – that men are and should only be sexually attracted to women, not men.” This discriminatory evil is more than reasonably comparable to the evil identified by the Supreme Court in Price Waterhouse. Indeed, the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two. Contra Prowel, 579 F.3d at 291 (“The line between sexual orientation discrimination and discrimination “because of sex” can be difficult to draw.”). It is, in the view of the undersigned, a distinction without a difference. Forcing an employee to fit into a gendered expectation—whether that expectation involves physical traits, clothing, mannerisms or sexual attraction—constitutes sex stereotyping and, under Price Waterhouse, violates Title VII. Simply put, Mr. McClendon’s alleged conduct toward Mr. Baxley “stemmed from an impermissibly cabined view of the proper behavior” of men. Price Waterhouse, 490 U.S. at 236-37.

Judge Bisoon does have logic on her side, and her opinion is well-grounded in Supreme Court precedent as well as that of the Courts of Appeal. Here’s the thing. I hope employers and the lawyers who counsel them didn’t need a legal opinion upon which to rely, to advise clients that offensive, harassing behavior in the workplace based on any criteria is off limits, should be prohibited, and should be handled as though it were already unlawful. But we now have precedent. And it is well reasoned and authoritative.

As I have written many times before, guard your employees against harassment. Publish and conduct training on a legally compliant workplace harassment policy. Many policies for years now have included sexual orientation as a “protected category.” It has long been the right thing to do. Now, arguably, it’s the law, y’all.

The author, Peter Rutledge, is an Employment Lawyer and Partner at Rutledge Law, Greenville, SC. You can contact him via these channels:
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“There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.”

–Judge Cathy Bissoon