• 17 May 2009

Heterosexuality and Title VII

Zachary A. Kramer - Dickinson School of Law (Penn. State)

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Dawn Dawson was an outsider among outsiders.1  A self-described gender-nonconforming lesbian woman, Dawson worked as a hair assistant and stylist trainee at Bumble & Bumble, a high-end salon in New York City.  Her coworkers at the salon were an eclectic mix of outsiders, and the salon management encouraged its employees to express their nonconformist identities openly.  Yet Dawson could not fit in with her coworkers.  They teased her, saying she should act less like a man and more like a woman.  They demeaned her in front of clients by referring to her as “Donald.”  They ridiculed her because of her sexuality, announcing that she “needed to have sex with a man” and that she wore her sexuality “like a costume.”  After working at Bumble & Bumble for less than two years, Dawson was fired from her hair assistant position and kicked out of the salon’s stylist training program.  When the salon manager met with Dawson to inform her of these decisions, the manager explained that Dawson would never be able to get a stylist position outside of New York City because her demeanor and appearance would frighten people.

Dawson brought a sex discrimination claim under Title VII of the Civil Rights Act,2 alleging that she was both fired and harassed because of, among other things, her failure to conform to traditional gender stereotypes.  Ultimately, Dawson lost her lawsuit.  In rejecting her gender-stereotyping claim, the Second Circuit held that the alleged discriminatory comments were targeted not at Dawson’s gender-nonconformity but at her homosexuality.  And because sexual orientation is not a protected trait under Title VII, the court held that Dawson had not stated an actionable discrimination claim.

The lesson of Dawson’s case is that an employee’s sexual orientation can swallow up an otherwise actionable claim of sex discrimination.  Even though Dawson’s Title VII claims were based on her sex and her gender-nonconformity, the court concluded that Dawson was trying to “bootstrap” protection for sexual orientation into Title VII by framing discrimination targeted at her sexual orientation as a claim of discrimination based on her gender-nonconformity.3  This has become a common story for lesbian and gay employees.  Due to the absence of statutory protection for sexual orientation discrimination at the federal level,4 lesbian and gay plaintiffs frequently lose their sex discrimination and gender-stereotyping claims because of their sexual orientation, with courts relying on reasoning similar to that used by the Second Circuit in Dawson’s case.5

My Article offers a critique of these “bootstrapping” cases from a perspective that has been overlooked in employment discrimination law and scholarship.6  The focus of that critique is heterosexuality.  In contrast to homosexuality and, to a lesser extent, bisexuality—both of which have been the subject of extensive scholarly attention—heterosexuality is largely absent from scholarly discussions about sexuality.  The absence of heterosexuality from the scholarly literature is not surprising because in American culture heterosexuals are typically thought of as not having a sexual orientation.  Instead, heterosexuality is the normative baseline against which all other sexual orientations are tested.  As such, heterosexuality tends to be absent from discussions about sex and sexuality.  This is especially true of legal discourse about sex and sexuality—courts rarely even acknowledge the existence of heterosexuality, let alone consider its legal implications.

In the realm of employment discrimination law, courts rarely consider the way in which an employee’s discrimination claim implicates heterosexuality.  This is the heart of the critique of bootstrapping cases presented in this Article.  Because heterosexuality is invisible in our culture, courts often fail to recognize when an employee’s discrimination claim implicates her heterosexuality.  To amplify this claim, I offer a novel reading of the Supreme Court’s groundbreaking decision in Meritor Savings Bank v. Vinson,7 where the Court established that claims of hostile environment sexual harassment can constitute unlawful sex discrimination in violation of Title VII.  Specifically, my reading of Meritor demonstrates that Mechelle Vinson, the plaintiff in Meritor, was not discriminated against solely because of her sex, but because of both her sex and her sexual orientation.  The Court, however, did not regard Vinson’s sex discrimination claim as an attempt to bootstrap antidiscrimination protection for heterosexuality.  

My reading of Meritor suggests that there is a double standard at work in employment discrimination law.  For lesbian and gay employees, sexual orientation is a burden because courts are primed to reject otherwise actionable sex discrimination claims on the theory that such claims are an attempt to bootstrap protection for sexual orientation into Title VII.  We see this in Dawn Dawson’s case, where the court concluded that Dawson’s homosexuality effectively tainted her sex discrimination claim.

Whereas lesbians and gay men are on the burdened side of the double standard, heterosexuals are on the privileged side.  No court has ever ruled—nor, I suspect, will any court ever rule—that a heterosexual plaintiff’s sex discrimination claim is an attempt to bootstrap protection for heterosexuality.  Heterosexuality is obscured by what I call the “paradox of privilege.”  The thrust of the “paradox of privilege” is that heterosexuality is at once everywhere and nowhere.8  Heterosexuality is everywhere because it is normative.  In other words, heterosexuality is embedded in the fabric of our culture; it is everywhere we look and a part of nearly everything we do.  Perhaps the best example of the pervasiveness of heterosexuality is the phenomenon of “coming out” as lesbian or gay.  In American culture, we presume that all people are heterosexual until proven otherwise.  Thus when a gay person comes out as gay, he is marking himself as non-normative, that is, as someone who is different from the heterosexual norm.

The second prong of the paradox of privilege is that heterosexuality is nowhere.  By this I mean that heterosexuality’s normativity is so deeply embedded in our cultural fabric as to render it invisible.  To see an example of this in action, think of a same-sex couple’s wedding announcement in the newspaper.9  Looking at the couple’s picture, the first thing most people see is that they are a gay couple.  By posing together in a picture, the couple effectively puts their homosexuality on display.10  Now think of a similar announcement for a different-sex couple.  Looking at this couple’s picture, most people may see bride and groom, or husband and wife, or perhaps just a man and woman.  Though people see many things in this second picture, they simply do not see the couple’s heterosexuality.

The nowhere prong of the paradox of privilege can also be seen in the way we talk about sexual orientation.  Because heterosexuals are not thought of as having a sexual orientation, the term “sexual orientation” tends to be used as if it were a synonym for “homosexuality.”  For instance, ask yourself the following question: “What comes to mind when you think about ’sexual orientation?’”  I ask my students this question toward the beginning of my Law & Sexuality seminar.  Their answers are always the same: the first things they think of are same-sex marriage, the “Don’t Ask, Don’t Tell” Policy, and the AIDS epidemic.

Consider another example.  My first law teaching job was a fellowship at sponsored by the Williams Institute, an academic think tank at UCLA School of Law.  On its website, the Institute describes its work as follows: “The Williams Institute advances sexual orientation law and public policy through rigorous, independent research and scholarship, and disseminates it to judges, legislators, policymakers, media and the public.”11  In terms of its actual work product, the Williams Institute does not study legal and policy issues relating to sexual orientation generally so much as it studies legal and policy issues relating to lesbians and gay men.  This is another good example of how sexual orientation is used as a synonym for homosexuality.  In short, society uses language that is reflective of our tendency not to think of heterosexuals as having a sexual orientation.

Because heterosexuality is obscured by the paradox of privilege, courts simply do not see it when an employee—like Mechelle Vinson—is discriminated against because of her heterosexuality.  As a result, no court will ever conclude that a heterosexual employee is raising a sex discrimination claim as a means to bootstrap protection for sexual orientation into Title VII.  Put simply, heterosexuals and homosexuals are not similarly situated under Title VII. 

The solution, then, is to re-orient employment discrimination law’s approach to sexual orientation.  My recommendation is that courts should neutralize sexual orientation.  When an employee brings a sex discrimination claim, the employee’s sexual orientation—whether heterosexual, homosexual, or otherwise—should neither benefit nor burden the employee.  Put another way, an employee’s sexual orientation should neither give rise to a cause of action nor prevent an employee from a sex discrimination based on some other protected trait, such as sex or gender-nonconformity.  Under such a re-oriented approach, an employee’s sexual orientation is irrelevant for purposes of employment discrimination law, no different than any other trait that is not protected under Title VII, such as eye color or whether the employee is a Chicago Cubs fan.

This is not to say that a court should ignore altogether an employee’s sexual orientation.  Courts should still acknowledge that the discrimination faced by the employee was based at least in part on the employee’s sexual orientation.  In terms of litigation strategy, the conventional wisdom for representing a lesbian or gay plaintiff in an employment discrimination case is that an attorney should not disclose her client’s homosexuality.  According to a practitioner’s guide to representing lesbian and gay clients in discrimination cases, “When bringing a gender stereotyping claim under Title VII, it is almost never a good idea to affirmatively plead or introduce evidence of a plaintiff’s [homosexuality.]  It does not help the case and can seriously damage it.”12

The advice that lesbian and gay employees should try to deemphasize their homosexuality is especially troubling to the extent that it encourages lesbian and gay employees to conceal rather than acknowledge their homosexuality in the workplace.13  A rich literature documents the benefits for lesbian and gay employees of disclosing their homosexuality to their employers and coworkers.14  Of course, employees who are open to their coworkers about their homosexuality expose themselves to the possibility of being discriminated against because of their sexual orientation.  Yet encouraging employees to “stay in the closet” in the workplace is not the solution to this dilemma.  Employment discrimination law should not have to encourage lesbian and gay employees to conceal their homosexuality in order to maintain their chances of articulating an actionable gender-stereotyping claim.  Along this axis, the bootstrapping cases offer a more satisfying approach to dealing with an employee’s sexual orientation.  The positive side of the court’s decision in Dawn Dawson’s case is that, at the very least, the court acknowledged Dawson’s homosexuality.  By contrast, the Court in Meritor never acknowledged that either Vinson or Taylor had a sexual orientation, as their heterosexuality was assumed.

As already noted, the primary reason why courts tend to treat heterosexuality and homosexuality differently is because heterosexuality is normative and therefore invisible, while homosexuality is stigmatized and therefore highly visible.  Thus one way out of the double standard is for courts to recognize that heterosexual employees have a sexual orientation and that they face discrimination on the basis of their heterosexuality.  By acknowledging the existence of heterosexuality and heterosexuality discrimination, courts must confront the differing standards that have been applied to employees based on their sexual orientation.  In this regard, the Article seeks to neutralize heterosexual privilege for the benefit of all employees who suffer discrimination based on their sex.dingbat



Copyright © 2009 Northwestern University Law Review.

Zachary A. Kramer is Assistant Professor of Law, Penn State University Dickinson School of Law.

For helpful comments and discussions at various stages or helpful comments and discussions at various stages of this Article’s progress, I am grateful to Carlos Ball, Terri Beiner, Fred Bloom, Matt Bodie, Bridgette Carr, Tommy Crocker, John DiPippa, Jamie Evans, Dave Fagundes, Frances Fendler, Liz Glazer, Michael Green, Carissa Hessick, Rebecca Hollander-Blumoff, Rob Kar, Liz Kukura, Dan Markel, Doug NeJaime, Gowri Ramachandran, Adam Rosenzweig, Kerry Ryan, Ann Scarlett, Paul Secunda, Josh Silverstein, Jason Solomon, Michael Stein, Rob Steinbuch, Tom Sullivan, Steve Vladeck, Anders Walker, Elizabeth Weeks, Steve Willborn, and Ekow Yankah.

I am especially indebted to Noah Zatz for his helpful advice in the early and later stages of this Article, as well as to Joi Leonard for her invaluable research support.

I am also grateful for the comments I received when I presented earlier versions of this Article at the University of Mississippi School of Law faculty workshop, the Hofstra University School of Law Colloquium on Law & Sexuality, the UALR Philosophy and Liberal Studies Department’s Friday Philosophy Forum, the Southeastern Association of Law Schools Annual Conference, the Texas Junior Scholars Workshop at Texas Wesleyan School of Law, Prawfsfest! Junior Faculty Workshop Loyola Law School, the Junior Faculty Workshop at Washington University, and the 2008 Law & Society Conference.

This Editorial is based on the following full-length Article: Zachary A. Kramer, Heterosexuality and Title VII, 103 NW. U. L. REV. 205 (2009). Click Here for the Full Article

  1. See Dawson v. Bumble & Bumble (Dawson II), 398 F.3d 211 (2d Cir. 2005); Dawson v. Bumble & Bumble (Dawson I), 246 F. Supp. 2d 301 (S.D.N.Y. 2003).
  2. Title VII of the Civil Rights Act of 1964 provides antidiscrimination protection in employment. See The Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 253-56 (codified as amended at 42 U.S.C. §§ 2000e-2000e-17).
  3. See Dawson II, 398 F.3d at 218-20 (“{A} gender stereotyping claim should not be used to ‘bootstrap protection for sexual orientation into Title VII.’” (quoting Simonton v. Runyon, 232 F.3d 33, 38 (2d Cir. 2000)).
  4. All courts agree that Title VII’s prohibition on discrimination “because of” sex does not cover cases involving discrimination targeted at a plaintiff’s sexual orientation. See, e.g., Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001); Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000).
  5. See, e.g., Vickers v. Fairfield Med. Ctr, 453 F.3d 757, 763 (6th Cir. 2006); Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1062-65 (7th Cir. 2003); King v. Super Service, Inc., 68 F. App’x 659, 660-64 (6th Cir. 2003); Simonton, 232 F.3d at 35; Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259-61 (1st Cir. 1999); Desantis v. Pac. Tel. & Tel. Co., 608 F.2d 327, 332 (9th Cir. 1974); Martin v. N.Y. State Dep’t of Corr. Servs., 224 F. Supp. 2d 434, 447 (N.D.N.Y. 2002); Ianetti v. Putnam Invs., Inc., 183 F. Supp. 2d 415, 420-23 (D. Mass. 2002); Lynch v. Baylor Univ. Med. Ctr., No. Civ.A.3:05-CV-0931-P, 2006 WL 2456493, *4-6 (N.D. Tex. Aug. 23, 2006); Mowery v. Escambia County Utils. Auth., No. 3:04CV382-RS-EMT, 2006 WL 327965, *6-7 (N.D. Fla. Feb. 10, 2006).
  6. Zachary A. Kramer, Heterosexuality and Title VII, 103 NW. U. L. REV. 205 (2009).
  7. 477 U.S. 57 (1986).
  8. My thinking on the paradox of privilege owes a great deal to Professor Michael Selmi’s work on employee privacy. See Michael Selmi, Privacy for the Working Class: Public Work and Private Lives, 66 LA. L. REV. 1035, 1035 (2006) (“At the turn of the twenty-first century, privacy has become the law’s chameleon, seemingly everywhere and nowhere at the same time.”).
  9. In 2002, the New York Times began publishing reports of same-sex commitment ceremonies and other celebrations when same-sex couples enter into formal, registered relationships. See Times Will Begin Reporting Gay Couples’ Ceremonies, N.Y. TIMES, Aug. 18, 2002, at A30.
  10. This would also be true of an interracial couple. For instance, imagine a wedding announcement of a marriage between a black woman and a white man. By posing together in the picture, this couple is effectively announcing their status as an interracial couple, because the first thing we notice when we see their picture is that the man and woman are not of the same race.
  11. Williams Institute, About Us, http://www.law.ucla.edu/williamsinstitute//home.html (last visited Jan. 29, 2009).
  12. Justin M. Swartz et al., Nine Tips for Representing LGBT Employees in Discrimination Cases, 759 PRACTICING LAW INSTITUTE: LITIGATION 95, 103 (2007). The guide goes on to say that introducing evidence of a plaintiff’s sexual orientation—by which they mean homosexuality—can be fatal to a plaintiff’s claim. Id. This advice comes from a section of the guide titled “Don’t Plead It Unless You Need It,” with the “it” being a client’s homosexuality.
  13. For a classic study of how gay men negotiate their sexual orientation in the workplace, see JAMES D. WOODS with JAY H. LUCAS, THE CORPORATE CLOSET: THE PROFESSIONAL LIVES OF GAY MEN IN AMERICA (1994). For a similar study in the context of lesbian professionals, see Marny Hall, Private Experiences in the Public Domain: Lesbians in Organizations, in Women’s Studies: Essential Readings 167 (Stevi Jackson et al. eds., 1993).
  14. See, e.g., Nancy E. Day & Patricia Schoenrade, Staying in the Closet Versus Coming Out: Relationships Between Communication About Sexual Orientation and Work Attitudes, 50 PERSONNEL PSYCH. 147 (1997) (finding that being “out” may reduce employees’ anxiety at work); Allen L. Ellis & Ellen D. B. Riggle, The Relation of Job Satisfaction and Degree of Openness About One’s Sexual Orientation for Lesbians and Gay Men, 30 J. HOMOSEXUALITY 75 (1995) (finding that employees who are “out” report greater levels of satisfaction with their coworkers).

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