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Sexual Stereotyping as Proxy for Sexual Orientation Discrimination

By Allen Smith  5/13/2014
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Despite inaction by Congress on the Employment Non-Discrimination Act (ENDA) and the absence of an ENDA executive order that would apply to federal contractors, a developing body of case law prohibits discrimination based on sexual orientation in the workplace, according to the Equal Employment Opportunity Commission (EEOC) in response to questions from SHRM Online.

“A number of courts have ruled that discrimination against lesbian, gay or bisexual individuals based on their sexual orientation is actionable as sex discrimination under Title VII,” the EEOC stated, providing the following examples:

  • Terveer v. Billington, 2014 WL 1280301 (D.D.C. 2014). The court rejected a federal agency employer’s motion to dismiss Title VII sex discrimination claims for denial of promotion and harassment because of nonconformance with sex stereotypes. The court found sufficient the plaintiff’s allegations that he is a “homosexual male whose sexual orientation is not consistent with the defendant’s perception of acceptable gender roles,” that his “status as a homosexual male did not conform to the defendant’s gender stereotypes associated with men at his workplace,” and “his orientation as homosexual had removed him from his supervisor’s preconceived definition of male.”
  • Koren v. Ohio Bell Telephone Co., 2012 WL 3484825 (N.D. Ohio 2012). The defendant’s motion for summary judgment was denied where the plaintiff alleged his supervisor discriminated against him based on sex stereotypes because he married a man and took his husband’s last name. The court stated, “That is a claim of discrimination because of sex.”
  • Centola v. Potter, 183 F. Supp.2d (D. Mass. 2002). “Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotype about the proper roles of men and women.”
  • Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002). The court recognized that the belief that men or women should be attracted only to persons of the opposite sex constitutes a gender stereotype.

However, the EEOC has not issued policy guidance addressing this question, nor filed a lawsuit in which this question specifically has been addressed, the agency observed.

The commission did note that where alleged discrimination occurs based on lesbian, gay, bisexual or transgender (LGBT) status, “cases in which plaintiffs have prevailed have not recognized new protected characteristics under Title VII. Rather, they have been analyzed as sex discrimination, typically involving nonconformance with gender stereotypes under Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989), and its progeny.”

“Although current case law does not explicitly extend Title VII protections to cases of sexual orientation discrimination, the EEOC is clearly exploring all options to protect LGB workers,” said Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign.

EEOC Commissioner Chai Feldblum, the first openly lesbian commissioner, “has publicly stated that although a case specifically addressing sexual orientation discrimination is needed, she interprets the 2012 EEOC decision in Macy v. Holder to also possibly extend to sexual orientation discrimination based on sex stereotyping,” he added.

The EEOC also has noted in its Strategic Enforcement Plan for Fiscal Years 2013-16 that it will examine emerging and developing issues, such as “coverage of LGBT individuals under Title VII’s sex discrimination provisions, as they may apply.”

Twenty-one states plus the District of Columbia have laws prohibiting discrimination on the basis of sexual orientation in the workplace, Cole-Schwartz noted. And 57 percent of Fortune 500 companies have nondiscrimination policies covering sexual orientation and gender identity in place.

Federal Government Prohibition

Executive Order 13087 makes it federal government policy to prohibit sexual orientation discrimination in federal employment.

“As significant a step as the signing of Executive Order 13087 was in stating the policy of nondiscrimination based on sexual orientation, however, it was just that—a policy statement. It provided for no enforceable rights for employees who believe they are victims of sexual orientation discrimination. Employees have no individual right of action to independently seek review from the EEOC for claims of sexual orientation discrimination,” states the U.S. Merit Systems Protection Board in its May 2014 report, Sexual Orientation and the Federal Workplace: Policy and Perception.

Sexual Orientation, Religious Discrimination

As for potential conflicts between prohibitions on sexual orientation discrimination and religious beliefs discrimination, Nan Hunter, a professor at Georgetown University Law Center, said, “If individual employees object to performing their duties without engaging in discrimination and say that their objection is based on their religious beliefs, they can ask for a special accommodation. It is then up to the employer to assess whether granting them an accommodation can be done without undue hardship to workplace efficiency or to other employees.”

But insubordination need not be tolerated. As the EEOC noted in Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004), “the court held an employer did not violate Title VII when it terminated an employee for insubordination after he responded to the employer’s diversity initiative by posting biblical scriptures condemning homosexuality in areas visible to co-workers, and refusing to remove them when asked to do so. The court found that the employee’s actions violated the employer’s internal anti-harassment policy, and that an employer does not have to accommodate an employee’s religious expression if it constitutes potential co-worker harassment.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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