Affiliative Discrimination Theory: Title Vii Litigation Within the Sixth Circuit

• Publication year: 2016

Affiliative Discrimination Theory: Title VII Litigation Within the Sixth Circuit

Pierce G. Hand IV

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AFFILIATIVE DISCRIMINATION THEORY: TITLE VII LITIGATION WITHIN THE SIXTH CIRCUIT

Pierce G. Hand, IV^*

Introduction

In Obergefell v. Hodges, the Supreme Court of the United States reached a groundbreaking decision by reversing the Court of Appeals for the Sixth Circuit and holding that the Fourteenth Amendment requires states to license and recognize a marriage between two people of the same sex.¹ In reaching this holding, the Court took note of society's changing perspective and remarked that "changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations[.]"² The Court further explained, "new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged."³ As proponents of same-sex marriage celebrate a victory for equal marriage rights, employment practitioners advise that the current cultural shift that led to Obergefell "likely signals the arrival of a change in employment law" where sexual orientation discrimination has not been recognized as unlawful.⁴ A review of the Sixth Circuit's precedent regarding sexual orientation discrimination within the workplace forecasts, in agreement with practitioners, employment discrimination as the next successful battleground for proponents of lesbian and gay rights.

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Meet Fred Tetro, a Caucasian male and finance manager at a car dealership.⁵ After Tetro's boss, the dealership owner, discovered Tetro had a biracial daughter, he began ridiculing and insulting Tetro on different occasions in front of employees and customers.⁶ Tetro overheard the owner on a telephone call discussing how he never knew Tetro had a biracial child and how this fact would hurt his dealership and image in the community.⁷

Now, meet Christopher Vickers, a police officer for a medical center who befriended a male doctor and a younger male employee at the medical center.⁸ Since Vickers developed these platonic friendships, two coworkers began making homophobic remarks and alleging that Vickers was gay.⁹ After learning that Vickers also vacationed with a former male roommate, his coworkers increased the frequency and severity of their harassment: tampering with Vickers's firearm, putting his life in danger during an arrest,¹⁰ constantly referring to him as "fag," and at times "humping" his buttocks to suggest he would enjoy anal sex.¹¹

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What is the difference between Tetro and Vickers? In the Sixth Circuit, Tetro can sue for discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), while Vickers cannot.¹² Title VII prohibits discrimination against employees because of "such individual's race, color, religion, sex, or national origin."¹³ In the Sixth Circuit, an employee can sue for discrimination under Title VII when he faces a hostile work environment because he affiliates with someone of a certain race—for example, having a biracial daughter—while an employee cannot sue for discrimination when he faces a hostile work environment because he affiliates with someone of a certain sex—for example, having close relationships with other male employees within the workplace.¹⁴ The Sixth Circuit held that Tetro was discriminated against based on his race, even though the "root animus" for the discrimination was prejudice against his biracial child.¹⁵ Here, the Sixth Circuit joins other courts¹⁶ in adopting

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"affiliative discrimination theory"¹⁷ —the idea that a person facing disparate treatment is discriminated against based on that person's race when the root animus of the discrimination is the race of someone else with whom the person affiliates.¹⁸

However, in Vickers's situation—where his coworkers acted hostile toward him because of his friendship affiliation with other male employees¹⁹ —the Sixth Circuit refused to consider this a result

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of Vickers's sex, but rather because of his perceived homosexual sexual orientation—a type of discrimination that Congress did not intend to protect according to the Sixth Circuit.²⁰ However, the Sixth Circuit's aim, to avoid "bootstrap[ping] protection for sexual orientation into Title VII" by not adopting affiliative discrimination theory for sex discrimination cases,²¹ conflicts with their own Title VII race jurisprudence and the Supreme Court's decisions in two cases: (1) Price Waterhouse v. Hopkins, where the Court interpreted Title VII's prohibition of sex discrimination to include employees not conforming to gender roles (i.e., "sex stereotyping");²² and (2) Oncale v. Sundowner Offshore Services, Inc., where the Court held Title VII's prohibition of sex discrimination to include "reasonably comparable evils" that were not the "principal evils" Congress intended to prohibit.²³

This Note argues that the Sixth Circuit, in order to maintain consistent jurisprudence within its own circuit and with the Supreme Court, should adopt affiliative discrimination theory under sex discrimination in Title VII as it has done with race discrimination.²⁴

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By addressing this inconsistency, the Sixth Circuit will provide greater protection for sex discrimination, reinforce reliability in Title VII with a uniform interpretation of race and sex discrimination, and help victimized employees make informed decisions in calculating the probability of success in litigating a Title VII sex discrimination claim. Part I of this Note provides a historical account of the treatment of race and sex under Title VII.²⁵ Part II analyzes the Sixth Circuit's split from its own jurisprudence and the Supreme Court in adopting affiliative discrimination in Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc. while rejecting this theory in Vickers v. Fairfield Medical Center.²⁶ Part III proposes that the Sixth Circuit adopt affiliative discrimination theory for sex discrimination under Title VII in order to resolve this inconsistency, alleviate the difficult task of distinguishing between discrimination based on sex and discrimination based on sexual orientation, and realize the benefits and increased protection to which citizens are statutorily entitled.²⁷

I. Background

A. Race Under Title VII's Liberal Construction

Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."²⁸ Although Title VII's statutory language explicitly states "because of such individual's race," the

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Eleventh Circuit, in the 1986 case of Parr v. Woodmen, was the first circuit court to broaden the interpretation of this phrase by adopting affiliative discrimination theory and including the race of another person with whom one affiliates.²⁹

In Parr, a white man claimed that an insurance company did not hire him as a salesman because his wife was black.³⁰ In resolving the Title VII claim, the Eleventh Circuit found "irrefutable" the logic used in a similar case before the Southern District of New York, Whitney v. Greater New York Corp. of Seventh-Day Adventists:

Manifestly, if Whitney was discharged because, as alleged, the defendant disapproved of a social relationship between a white woman and a black man, the plaintiff's race was as much a factor in the decision to fire her as that of her friend. Specifying as she does that she was discharged because she, a white woman, associated with a black, her complaint falls within the statutory language that she was '[d]ischarged . . . because of [her] race.'³¹

The Eleventh Circuit also noted that it was obliged to give Title VII a liberal construction and that it was "the duty of the courts to make sure that the [Title VII] Act works" and is not "hampered by a combination of a strict construction of the statute in a battle with semantics."³² After Parr, other courts, including the Sixth and Seventh Circuits, adopted affiliative discrimination theory for Title VII race claims, allowing citizens to sue for discrimination based on the race of persons with whom they affiliated—e.g., wives, daughters, friends, etc.³³

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B. Sex Under Title VII

1. The Road to Actionable Sexual Harassment Claims Under Title VII

Although the central purpose of the Civil Rights Act of 1964 was to prohibit racial discrimination,³⁴ U. S. Representative Howard W. Smith of Virginia, at the last-minute, led an amendment to include the protected category of "sex."³⁵ The principal argument in opposition to the amendment was that "sex discrimination" was sufficiently different from other types of discrimination and ought to receive separate legislative treatment; however, this argument was defeated.³⁶ Courts lack a detailed legislative history available to interpret what is inclusive of "sex" under Title VII because this amendment passed at the last-minute; thus, a lack of certainty and uniformity exists across jurisdictions.³⁷ In fact, because sexual harassment was not on the face of the statute, many courts did not acknowledge it as a cause of action until the Supreme Court's 1986 decision in Meritor Savings Bank v. Vinson.³⁸

In Meritor, a female bank employee engaged in sexual relations with her boss out of fear that if she resisted his propositions, she would lose her job.³⁹ The Court held that this sexual harassment was

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a form of discrimination on the basis of sex and thus a violation of Title VII by creating a hostile or abusive work environment.⁴⁰ The Court reasoned that sexual harassment that creates a hostile environment for members of one sex is a barrier to sexual equality in the workplace similar to how racial harassment acts as a barrier to racial equality.⁴¹

2. The Supreme...