Wednesday, August 12, 2009

Another Sex Stereotyping/Gender Identity vs. Sexual Orientation Case

Genderbender Matthew Heller at On.Point has this story on a hair stylist, terminated because he dressed in too feminine a manner.

One supervisor allegedly told Brant he was “too flamboyant” for male clients. He was fired in August 2008 –- shortly after he asked Chop Shop owner Kathy Thomas why he had to abide by different rules than female stylists.

“In response thereto, Kathy stated, 'it is okay for a girl to look like a dyke, but it is not socially acceptable for [Plaintiff Brant] to look like a girl,'” the complaint, which seeks unspecified damages for sex discrimination and retaliation, says. According to his complaint, the stylist also “typically dresses in women’s dress pants and shirts, and wears shoes with a heel. He curls his eye lashes and uses brown mascara, and also uses gel blush to color his cheeks. His hair is about chin-length."

Heller correctly points out the danger that a court will interpret this as discrimination on the basis of sexual orientation (not protected--hurry up ENDA) rather than discrimination on the basis of sex. There may be some hope in the transgender/sexual identity cases (note here, here, and here), where some courts have held that penalizing a person for failing to conform to expected gender roles is discrimination on the basis of sex. But as he quotes from a very similar Second Circuit case,

“When utilized by an avowedly homosexual plaintiff ... gender stereotyping claims can easily present problems for an adjudicator,” the court said in Dawson v. Bumble & Bumble, 398 F.3d 211 (2005). “This is for the simple reason that '[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.'”

A lesson, in my view, that sexual orientation and identity discrimination both are types of sex discrimination, already covered by Title VII. More importantly, when does that vow happen? Is a person not gay unless they've been through some secret ceremony with robes and holy books? Why are people so rarely described as "avowedly heterosexual" except when we mean to doubt the veracity of their claim? But I digress.

MM

http://lawprofessors.typepad.com/laborprof_blog/2009/08/another-sex-stereotypinggender-identity-vs-sexual-orientation-case.html

Employment Discrimination | Permalink

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