Tuesday, October 26, 2021
By: Christopher R. Leslie
Published in: Duke Law Journal, Vol. 71, No. 1, 2021
In Bostock v. Clayton County (2020), the Supreme Court held that Title VII’s prohibition on sex-based employment discrimination applies to discrimination based on sexual orientation and gender identity. Although the opinion is an important victory, if history is any guide, Bostock was only one battle in a larger war against invidious workplace discrimination based on sexual orientation and gender identity. The Bostock opinion will do little to quench the urge of prejudiced employers and managers to discriminate. These employers will seek alternative, less obvious ways to discriminate. Judges and civil rights lawyers must prepare themselves to recognize and reject pretextual rationales for adverse actions taken against LGBT employees. A better understanding of history can inform those efforts.
This Article is the first scholarship to examine an unexplored chapter in America’s history of anti-gay discrimination in the workplace: punishing gay workers for concealing their sexual orientation. Beginning in the 1960s, as federal and state law implemented procedural protections for public-sector workers, employers developed a new mechanism to evade those protections: the gay perjury trap. At its core, the strategy is simple. An employer asks job applicants about their sexual orientation. If they reveal that they are gay, decline to hire them. If gay workers conceal their sexual orientation and it is later discovered, terminate them for their dishonesty. Either way, gay workers are purged from the workforce.
The Article begins by describing the gay perjury trap, providing historical examples of the federal government and local school districts using this strategy to terminate high-performing workers who were later discovered to be gay. After discussing the inherent unfairness of the gay perjury trap, the Article then explains how prejudiced employers may attempt to deploy this strategy as a means of circumventing Title VII liability in the post-Bostock era.
Finally, the Article discusses how courts should prevent employers from using the gay perjury trap in the post-Bostock work environment. Dismantling the gay perjury trap should entail three components. First, courts should interpret Title VII as prohibiting employers from inquiring about an applicant’s or employee’s sexual orientation. Second, courts should not afford employers a general right to penalize gay workers for concealing or misrepresenting their sexual orientation. Third, courts should construe Title VII to protect employees who refuse to answer questions about their sexual orientation.
Whether Title VII can effectively deter and remedy anti-gay discrimination will in significant part depend on our courts’ ability to recognize and prohibit employers from using the gay perjury trap. The post-Bostock Title VII cannot succeed if employers can use alleged dishonesty about sexual orientation as a means of punishing gay workers and of avoiding Title VII liability.