District court applies gender stereotype theory to…

District court applies gender stereotype theory to harassment of gay male employee

Shannon P. Duffy of The Legal Intelligencer reports on a Philadelphis district court decision in Kay v. IBC in which a gay male employee presented evidence he was subjected to gender stereotyping, being harassed for failure to conform to expectations of male conduct or appearance.

This evidence included a note from a co-worker, written on an advertisement for a gay telephone chat line, saying: “A real man in the corporate world would not come to work with an earring in his ear. But I guess you will never be a ‘real man’!!!!!!” Another incident was that a female co-worker commented “You are just so gay” when he was unable to change a water-cooler bottle, and then, when another man completed the job, yelled out, “I’m glad that there’s a real man on the floor.”

The judge found these were instances of gender discrimination, which is unlawful under Title VII, not sexual orientation discrimination, which is not. But the employee lost, because they were not sufficiently severe and pervasive to amount to a hostile work environment.

This “sexual stereotyping” approach to gay discrimination claims is a trend to watch. It makes perfect sense under Title VII jurisprudence. Ultimately this reasoning could lead to the conclusion all sexual orientation discrimination is unlawful (but won’t likely get there without a trip to the Supreme Court, because the lower courts have held that because sexual orientation is not mentioned in Title VII, such discrimination is not prohibited).

I say this because sexual orientation discrimination is treating an employee adversely because of the gender of their preferred partner. If the employee were the opposite gender, such preference would be unremarkable (e.g., while a female employee with a female partner may be subject to discrimination for this preference, if she were a man with a female partner this would obviously be a non-issue). Thus, it is the employee’s gender which leads directly to the discrimination, and Title VII applies.

Practically speaking, this trend is a good reason to include sexual orientation in an employer’s equal opportunity and harassment policies. Why be on the cutting edge with a case against you pushing the envelope on this new theory, when you can take the same proactive and preventive approach as you (should) take with sexual and other harassment?

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