Many states and localities have laws forbidding discrimination on the basis of sexual orientation (LGBT).
But Title VII of the Civil Rights Act, one of the federal laws barring discrimination in the workplace, law does not prohibit it.
What Title VII does make unlawful, however, is stereotyping based on a person’s gender non-conforming behavior (i.e., a man who appears effeminate, or a “manly” woman). As a Virginia federal court (here) re-emphasized last week, sex stereotyping is central to all discrimination:
Discrimination involves generalizing from the characteristics of a group to those of an individual, making assumptions about an individual because of that person’s gender, assumptions that may or may not be true.
Recognizing that the line between unlawful sex stereotyping and lawful (yet despicable) discrimination on the basis of sexual orientation can be tough to draw, the Virginia court denied a defendant’s motion to dismiss a pro se plaintiff’s sex stereotyping claims because he alleged that he was given crappy assignments based on the company’s position that his failure to conform to gender norms reflected poorly upon the company and would displease its clients. This was enough, at the pleading the stage, to spell out plausible claims for sex stereotyping. Whether the plaintiff can ultimately prevail is another story.
The takeaway here is this: there are certain incendiary words that, when used in workplaces — especially blue-collar workplaces — may create immediate animosity and, ultimately, lead to lawsuits from male or female employees. Take, for example, the word “bitch.” Courts recognize that calling a woman a bitch is intentional discrimination based on gender. But, calling a man a “bitch” (or “faggot” or “woman”) can also give rise to a sex stereotyping claim based on a failure to conform to gender norms.
So, when conducting respect-in-the-workplace training, don’t give same-sex harassment short shrift. Instead, explain it, give examples, and remind employees that they don’t have to endure that kind of crap at work. Encourage anyone who experiences or witnesses sex stereotyping to complain about it so that it may be addressed and dealt with immediately.
Also, if you’re one of the few employers that hasn’t progressed beyond the confines of Title VII to preclude discrimination based on sexual orientation, get out of the stone ages and join us here in the 21st century.