July 20, 2006
Distinguishing Gender Stereotype Discrimination from Sexual Orientation Discrimination
Here's a potentially important decision written by the Sixth Circuit in the case of Vickers v. Fairfield Medical Center, No. 06-0252 (6th Cir., July 19, 2006), finding (2-1), on a Rule 12(c) motion, that a Title VII plaintiff did not have a cognizable sex discrimination claim based on gender sex stereotyping.
Here's a summary of the facts of the case by the Court:
Vickers was employed as a private police officer by Fairfield Medical Center in Lancaster,
Ohio. Kory Dixon and John Mueller were also police officers at FMC and often worked with Vickers. Steve Anderson was Police Chief of FMC’s police department and was Vickers’ supervisor.
According to the complaint, Vickers befriended a male homosexual doctor at FMC and assisted him in an investigation regarding sexual misconduct that had allegedly occurred against the doctor. Once his co-workers found out about the friendship, Vickers contends that Dixon and Mueller “began making sexually based slurs and discriminating remarks and comments about Vickers, alleging that Vickers was ‘gay’ or homosexual, and
questioning his masculinity.”
Vickers contends that he was subject to daily instances of harassment at the hands of his coworkers from May 2002 through March 2003. The allegations of harassment include impressing the word “FAG” on the second page of Vickers’ report forms, frequent derogatory comments regarding Vickers’ sexual preferences and activities, frequently calling Vickers a “fag,” “gay,” and other derogatory names, playing tape-recorded conversations in the office during which Vickers was ridiculed for being homosexual, subjecting Vickers to vulgar gestures, placing irritants and chemicals in Vickers’ food and other personal property, using the nickname “Kiss” for Vickers, and making lewd remarks suggesting that Vickers provide them with sexual favors.
Allegations also concerned pervasive sexuall-oriented physical harassment. Nevertheless, based on this set of facts, the court found, on the pleadings, that:
We conclude that the theory of sex stereotyping under Price Waterhouse is not broad enough to encompass [this case]. The Supreme Court in Price Waterhouse focused principally on characteristics that were readily demonstrable in the workplace, such as the plaintiff’s manner of walking and talking at work, as well as her work attire and her hairstyle . . . . Later cases applying Price Waterhouse have interpreted it as applying where gender non-conformance is demonstrable through the plaintiff’s appearance or behavior . . . . Rather, the harassment of which Vickers complains is more properly viewed as harassment based on Vickers’ perceived homosexuality, rather than based on gender non-conformity.
Ultimately, recognition of Vickers’ claim would have the effect of de facto amending Title
VII to encompass sexual orientation as a prohibited basis for discrimination.
Let me blunt. I think this decision is just plain wrong. In cases such as Oncale, the actual sexual orientation of the person did not matter (no one even knew Oncale's sexual orientation). All that mattered was that the plaintiff was subject to degrading, usually physically, behavior by other men because he was not living up to some gender stereotypical norm.
I am at a loss as to why this court considered this claim one of discrimination based on perceived homosexuality, as opposed to a claim of discrimination based on gender non-conformity. Is the court serious that such a distinction should really come down to whether a man acts like a woman or walks like a woman?
I think the Nichols case from the 9th Circuit is a much more coherent view for these types of sexual discrimination claims involving gender non-conformity.
Finally, the fact that a case like this could be decided on a judgment on the pleadings is beyond me. Is there really nothing that could have been gained by allowing discovery to fill out the record in this case? In this regard, I agree with Judge Lawson's dissent:
However, these distinctions can be complicated, and where, as here, the plaintiff has
pleaded facts from which a fact finder could infer that sex (and not simply homosexuality) played a role in the employment decision and contributed to the hostility of the work environment, drawing the line should not occur at the pleading stage of the lawsuit.
Here's hoping the 6th Circuit, sitting en banc, reverses this bad boy.
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I agree with Paul, of course, having written about this subject extensively a while back. What might be added to his comment is that the Sixth Circuit is on a dangerous path here of trying to draw some very find distinctions between what different gender stereotypes, deciding which ones count as Title VII-offenders and which ones don't. Some comments and actions are inevitably going to be very close to the line in what they implicate in reasonable minds. The facts of this case show that clearly -- to exactly what norms did Dr. Vickers not conform? And why, one might reasonably ask, is the norm that men should have sex only with women (and women only with men) not itself a gender stereotype within the meaning of Price Waterhouse? No court (to my knowledge) has ever really wrestled with that question. As I wrote once, I consider it perhaps the "ultimate" gender stereotype.
Posted by: Sam Marcosson | Jul 20, 2006 10:11:24 AM
Completely aside from the question of whether sexual orientation discrimination can be fully disentangled from sex discrimination (a proposition I thought the 6th Cir. had itself rightly rejected in its important trans decision Smith v. City of Salem), other troubling aspects of this decision are (1) its limitation of "stereotyping" to physical apperance or behavior, and (2) its inattention to the origins of this harassment in the plaintiff's support for a gay male co-worker.
(1) is clearly wrong. The classic "sex-plus" cases frequently involve social relationships (marriage, parenting, etc.), not just physical appearance and behavior. So too do the cases finding race discrimination against whites with interracial friendships, alliances, or romances.
(2) is important b/c the pleaded facts permit the interpretation that plaintiff was targeted for his support of a gay male co-worker. This threw his masculinity into doubt b/c it violated a workplace norm of men policing other men's heterosexuality. The use of anti-gay epithets is no more dispositive than the use of misogynist epithets against a man who shows solidarity with female co-workers. The point is why those epithets were used.
Both these points are developed in my article, "Beyond the Zero-Sum Game." http://www.law.ucla.edu/home/index.asp?page=772
Posted by: Noah Zatz | Jul 20, 2006 10:24:44 AM
Actually I think the issue is a little more complicated than expressed above. I think the court is wrong in that it doesn’t go far enough in analyzing the problem, but stops halfway. The way I see this workplace behavior, plaintiff’s co-workers were using an ”associative stigma.” That is, because gay or lesbian sexual orientation is not always visible, misattribution or stigma may result when a non-gay person associates with a gay or lesbian individual. This is particularly true for a male associating with a gay man, as happened here. The co-workers were indeed enforcing their view of heterosexuality by treating plaintiff as though he were gay and using that language – which is likely sexual orientation discrimination and not non-conforming gender, I believe. Where the court did not go far enough is in stopping there, and not examining the common stereotypes of gay men as effeminate or not manly. Thus, when they associated plainitff as gay, they also viewed him and his behavior as stereotypically gay, and therefore stereotypically not masculine. That is the link to gender conformity enforcement. See my articles on the experiences of lesbian and gay people in the courts or other examples of associative stigma, etc.
Posted by: Todd Brower | Jul 20, 2006 6:12:48 PM
I'm with Todd that this is rings within rings. After many years as a psychologist married to a lawyer, the first point which I always remember is that those who practise the law have as many psychological preconceptions about people as those who do not. (Hey - I get to listen to the conversation after the 5th drink!)
It becomes impossible to demand that people make judgments based on both sophisticated levels of personal, moral and sociological insight as well as judicial insight, so we hammer out a kinda-sorta functional solution and keep updating it, but making it more complicated, as we go along.
Not very satisfactory, least of all for gay and lesbian people.
Here's one solution :
Posted by: Glynis | Jul 23, 2006 3:50:52 PM