The conventional view of Title VII holds that gay and lesbian workers can bring discrimination claims based on gender stereotyping but not sexual orientation. Analyzing over 240 federal court cases on gender stereotyping in the workplace, this Article shows that the conventional view is wrong. In cases brought by “perceived homosexuals,” courts distinguish not between gender stereotyping and sexual orientation claims, but between two ways that violations of gender norms can be perceived: either as something literally seen or as something cognitively understood. This Article shows that plaintiffs who look “gay” often find protection under Title VII, while plaintiffs thought to violate gender norms (through known or suspected sexual activity, friendships, hobbies, or choice of partner) almost never win.
By privileging appearances over identity, these cases run counter to the theories of antidiscrimination law that privilege blindness and assimilation. They reverse courts’ usual tendency under Title VII to accept claims based on activities (like child-rearing) known to take place outside of work, but to reject appearance claims, especially challenges to makeup and grooming requirements. And they upend the accounts of “covering” that have been widely accepted in discussions of law and sexuality. Meanwhile, on a practical level, these cases threaten to increase the salience of sexual orientation in the workplace, help entrench the stereotypes they are meant to proscribe, and isolate the claims of successful Title VII litigants from the more assimilationist demands made by gay plaintiffs in areas like marriage, adoption, and military service. As courts have quietly begun granting protection to only the visible subset of gay workers, this Article asks: at what cost, both to LBGT workers, and to ongoing debates over the protection those workers should receive under federal law?Soucek notes that
William Eskridge has described three mutually reinforcing forms that homophobic prejudice often takes. In its hysterical guise, homophobes think of gays and lesbians as dirty people doing disgusting things. As an obsessional prejudice, homophobes fear that gays are conspiring against them, seeking advantage. In its narcissistic form, homophobes put homosexuals in the category of “‘the Other,’ a group whose differentness helps the homophobe define her or his own sexual identity.” These three forms of homophobia correspond tightly—and troublingly—to the three worries just canvased in this Section.
First, disgust. Thoughts of unseen sexual acts not only drive homophobia in its hysterical form, but perhaps help to explain as well why courts have taken such anomalous refuge in appearances in cases involving homosexuality. Even if squeamishness about gay sex does not motivate courts’ reasoning in these cases, the opinions themselves continue a history in which gay sexuality is treated as unmentionable. The opinions’ insistence on categorizing the claims as instances of gender stereotyping rather than sexuality simply reenacts this silencing.
Second, by privileging the subset of Title VII plaintiffs who are visibly at odds with those generally bringing assimilationist gay rights claims, courts appear responsive to worries, expressed most often in marriage debates, that gays and lesbians are conspiring for “special rights.” Separating the progress made by a certain type of gay plaintiff in employment discrimination law from that being made elsewhere in the law allows courts to sidestep the concerns of those who see protections like those enshrined in ENDA as a stepping-stone to same-sex marriage. Doing so may minimize backlash, but insofar as ENDA-like protections are a steppingstone to broader gay rights, courts may be hampering that movement. Moreover, the concerns of conspiracy theorists—those who see gays and lesbians as conspiring for rights—are reinforced and even embodied by the many courts that write of homosexuals trying to “bootstrap” their way into Title VII.
Finally, by incentivizing perceptible differentiation, courts contribute to the “othering” of gays and lesbians. This worry is perhaps the most troubling one of all, for it suggests that by granting a subset of gays and lesbians protection under Title VII, courts might actually be bolstering perceived differences between gay and straight workers, increasing rather than disrupting the salience of sexual orientation in the workplace, and reinforcing and us-them mentality in which balkanized factions of workers compete in what is seen as a zero-sum game.Soucek concludes -
If the case law as it currently stands poses the threats just described, what is to be done? In one sense, this is the least interesting question of this Article, for an answer is so obvious. Passage of the Employment Non-Discrimination Act (ENDA) or a similar law would instantly dissolve the Title VII dilemma by taking away its second premise: Congress’s failure to explicitly protect sexual orientation under Title VII. Doing so would offer gay and lesbian workers protection from discrimination that the First Circuit has called a “noxious practice, deserving of censure and opprobrium,” the Second Circuit has castigated as “morally reprehensible whenever and in whatever context it occurs,” and even the Ninth Circuit’s dissenters in Rene described as “appalling and deeply disturbing.”
The goal of the previous pages has not been to argue for ENDA, however. In fact, the preceding argument enters that debate only indirectly. My aim here has been to correct the standard story told about gay workers and Title VII — to show that, in cases involving perceived homosexuality, courts have settled on an strange and unstable compromise: protecting only those who look or act sufficiently “gay” at work. This is a result that should come as a surprise to most, for it belies the conventional wisdom that sexuality claims uniformly fail under federal employment discrimination law. Moreover, it runs counter to standard theoretical and doctrinal stories about the role of appearances within antidiscrimination law in general.
What my discussion here shows is that courts—faced with the Title VII dilemma and, if the concerns just quoted are representative, their discomfort with the treatment some gays and lesbians experience in the workplace—have crafted a largely unnoticed, de facto ENDA of their own. It is an ENDA that no imaginable Congress would pass. And as I argued in the previous Part, it is quite possibly an ENDA that we should not want.
What makes this Article an indirect intervention into the ongoing debate over the real ENDA is its revelation that the choice facing Congress is not, as the standard story would have it, between ENDA and a status quo in which gays and lesbians get no protection under Title VII. That description of the status quo is simply not true. In the federal courts today, “visible” homosexuals—those who look or act sufficiently gay in the eyes of co-workers and courts—often already do get protection. I do not know, frankly, how this revised understanding of the status quo might affect the debate over ENDA were it better understood. Would conservatives still want to the preserve the status quo under Title VII if they knew that this meant that employers could discriminate against assimilationist gays, but not ones who flaunt? Would liberals redouble or relax their efforts for full protection, knowing that some protection is already on offer, but that this might, in some ways, be worse than no protection at all? It is quite possible that the current state of the law in this area is one which no party in the debate would choose. That is an important point to realize as the choice between ENDA and the status quo continues to be debated.
This Article’s argument also raises a warning about ENDA itself, however. ENDA proscribes employment discrimination because of “actual or perceived sexual orientation or gender identity”—where sexual orientation is defined as “homosexuality, heterosexuality, or bisexuality,” and gender identity is defined as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” ENDA includes exceptions which allow employers to establish “reasonable dress or grooming standards” and to restrict access to “shared shower or dressing facilities in which being seen unclothed is unavoidable.”
The explicitness of the visibility criterion embedded in the latter exception is worth noting.
These provisions make clear that, after ENDA’s passage, cases like Brian Prowel’s could proceed directly as sexuality discrimination claims rather than claims of gender stereotyping. Or, depending on how courts treat gender stereotyping claims after ENDA, someone like Prowel could perhaps bring an intersectional claim as an effeminate gay man. Whether courts will continue reading “sex” in Title VII expansively once sexuality and gender identity (including gender-related appearance and mannerisms) are covered elsewhere in federal law is an open question, however. Perhaps Prowel’s intersectional claim would not be sex (Title VII) plus sexual orientation (ENDA), but rather sexual orientation and gender identity, both as covered under ENDA.
But what about Christopher Vickers? Were he actually gay, Vickers’ claim would indisputably be covered under ENDA. But though Vickers was thought to be gay, his actual sexuality was never revealed either at work or in court. Read straightforwardly, ENDA would seem to protect Vickers through the phrase “actual or perceived sexual orientation,” repeated sixteen times in the bill. This should be read to mean that ENDA protects employees from discrimination based on what others think their sexual orientation to be. That is to say, “perceived sexual orientation” in ENDA undoubtedly concerns thought, not vision.
This is the very assumption proven wrong, however, in Vickers and the many cases like it. Current Title VII case law more often offers a literalist reading of perception instead, however bizarre the results. Were ENDA’s language about “perceived sexual orientation” to be read literally, employees would be protected if they were gay, or if they were not gay but looked gay. Yet Vickers and others merely thought to be gay might still fall through the cracks. This may sound absurd, but it is only slightly more strange than the current state of affairs in which gay employees must look or act sufficiently gay to receive protection under not just perceived orientation, but also appearances, mannerisms, and being seen in the shower—makes it all the more possible that courts’ literal reading of perception could linger. As so often with questions of visibility, we might just have to wait and see.