Wednesday, April 27, 2005

Not Man Enough?

Although some states and cities have seen fit to include homosexuals, bi-sexuals and trans-gendered individuals as a protected class and provide a prohibition against discrimination on based on those characteristics, most believe that federal law (Title VII of the Civil Rights Act of 1964) does not prohibit discrimination on those bases.  However, the times, they are a-changin’—especially for employers in Oregon and states within the jurisdiction of the Sixth Circuit Court of Appeals.

As our society has become more accepting of sexual orientations other than heterosexual, and of transvestitism and transexualism, it is no surprise that some jurisdictions have passed state and local laws prohibiting discrimination on those bases.  For example, Maine will add sexual orientation, defined as a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression, to its list of protected categories as of June 2005.

In addition to law changes brought on by legislative bodies, the Federal Court of Appeals for the Sixth Circuit and the Oregon Federal District Court have interpreted Title VII to prohibit discrimination against a homosexual male (Oregon) and a pre-operation trans-sexual male (Ohio) under the theory that the prohibition against sex discrimination also prohibits employers from discrimination on the basis of sexual stereotyping.  In other words, the courts found that discrimination or harassment against an individual because his behavior or appearance is seen as effeminate or not manly enough can support a claim for sex discrimination in these two jurisdictions.

In the Oregon case, Kevin Turner, who is homosexual, alleged he faced constant harassment, including co-workers who put bananas in their pants and rubbed up against him. He also alleged his supervisor picked up a purse and called him “Kevina” during an employee morale-boosting event.  In the case decided by the Sixth Circuit (pdf), Phillip (now Philecia) Barnes alleged that his promotion to Sergeant of the Cincinnati Police Department was revoked in part because he was a male-to-female transsexual living as a male while on duty but as a female when off-duty.  (Barnes had a French manicure, arched eyebrows, and sometimes wore lipstick and makeup to work.  Witnesses for the Cincinnati Police Department testified that Barnes did not have the respect of subordinate police officers.) 

Both plaintiffs sued using the theory that sexual stereotyping—discrimination because a person’s conduct or appearance does not fit that traditionally expecte for their gender—is a type of sex discrimination under Title VII.  The Oregon district court and the Sixth Circuit Court of Appeals agreed that Title VII provides this cause of action.  (This is not the first case from the Sixth Circuit interpreting Title VII in this way.  The same Court decided Smith v. City of Salem (pdf) in June 2004.)

What does this mean for employers?  Just because you are not in a jurisdiction that has legislatively designated sexual orientation as a protected class, it is not safe to assume that you can base employment decisions on things like, say, a male employee wearing lipstick and a dress to work.  When issues of sexual stereotyping come up, you’d better call your lawyer—preferably BEFORE taking any action—to learn the current status of this issue in your jurisdiction.