INTRODUCTION I. TITLE VII AND THE LEGACY OF HOPKINS A. The Text and Legislative History of Title VII Are Sharp Tools to Strike at the Entire Spectrum of Disparate Treatment of Men and Women Resulting from Sex Stereotypes B. The Path to Protection of Transgender, Gay, Lesbian, and Bisexual Employees Under Title VII C. Sexual Orientation Discrimination Under Title VII: Moving from "Loopholes " and "Bootstraps " to Full Coverage D. Enforcement of Sex-Specific Dress and Grooming Codes by Lower Courts Violates both the Plain Language of Title VII and the Clear Holding o/Hopkins II. THE UNEVEN PROGRESS OF OPPOSITION TO SEX STEREOTYPING, IN LAW AND IN LIFE III. THE PROSPECT OF ENDA A. Would the Current Version of ENDA Help Darlene Jespersen? B. The Americans with Disabilites Act Experience as a Cautionary Tale for ENDA Proponents C. In Addition to Its Many Dangerous Ambiguities, the Current Version of ENDA Has Many Severe Limitations 1. The current version of ENDA has a religious exemption that started out broad and is getting broader 2. The current version of ENDA has no BFOQ exception and prohibits "preferential treatment or quotas" 3. The current version of ENDA does not allow for disparate impact claims CONCLUSION: SOUR GRAPES AND SWEETER, LOWER-HANGING FRUIT INTRODUCTION
This year, the fiftieth anniversary of the passage of Title VII of the Civil Rights Act of 1964, is also the twenty-fifth anniversary of the U.S. Supreme Court's decision in Price Waterhouse v. Hopkins. (1) Hopkins reaffirmed what the Equal Employment Opportunity Commission (EEOC), lower courts, and the Supreme Court itself had long observed about Title VII's prohibition on discrimination in employment on the grounds of sex:
As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for "[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." (2) In honoring both these anniversaries through this Essay, I will be reaffirming arguments I first made about the implications of the Hopkins decision in my 1995 Yale Law Journal article Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence. (3) Some of these arguments have finally been accepted by both federal courts and the EEOC, but others, although once long ago accepted, have more recently, unfortunately, been called into question. My analysis of the implications of Hopkins focused on the appropriate legal treatment of the various forms of what I called gender discrimination, defined as "discrimination in favor of or against qualities coded masculine or feminine, sometimes irrespective of and sometimes inflected by whether the person exhibiting those qualities was male or female." (4) Famously, the prevailing plaintiff in the case, Ann Hopkins, had been criticized by those considering her for partnership in an accounting firm for being "macho," "overly aggressive," and "tough-talking," and had been advised that her chances for partnership would improve were she to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, ... wear jewelry," and go to "charm school." (5) Because to ask these things of her when they were not required of a male candidate was held to be impermissible discrimination on the grounds of sex, I drew from the case a roadmap for protection against discrimination in employment for gender benders of all sorts, including those whom lower courts had earlier refused to protect, such as plaintiffs who were denied employment or suffered harassment on the job because they were perceived as effeminate, gay, or transgender, or in violation of sex-specific codes of dress, grooming, or behavior. I thought at the time that women who moved in a direction perceived as masculine were the most readily assured of legal protection--after all, Ann Hopkins had won her case, the Supreme Court was about to order women admitted to the hypermasculine Virginia Military Institute (VMI), (6) and California had even passed legislation that made it a violation of state sex discrimination laws for an employer to prohibit female employees from wearing pants to work. (7) The more difficult task, to which I devoted the bulk of my article, would, I thought, be in persuading courts and other decisionmakers that the logic of Hopkins equally protected a male employee's moves in the direction of a more feminine gender presentation.
For some time after Hopkins, and contrary to its clear holding, courts in Title VII cases continued to enforce sex-specific employment codes against and left vulnerable to firing and harassment both male-to-female (MTF) transsexuals and male plaintiffs who did not claim to be transgender, but who nevertheless engaged in behavior seen as stereotypically feminine. (8) Since the turn of the millennium (and particularly in the last several years), however, transsexuals, effeminate men, and gay men have found increasing favor with the EEOC and with courts adjudicating Title VII anti-sex-stereotyping cases, as I shall discuss. On the other hand, in the infamous Jespersen case, the Ninth Circuit, en banc, enforced a sex-specific grooming code against a female plaintiff who did not identify as transgender, but simply claimed that her employer's requirement that she wear makeup '"prohibited [her] from doing [her] job' because '[i]t affected [her] self-dignity ... [and] took away [her] credibility as an individual and as a person.'" (9) Jespersen's employer, Harrah's Casino, ironically gave the name "Personal Best" to the sex-specific grooming regime under which it required Jespersen and all other female bartenders to wear color-coordinated foundation, rouge, mascara, and lipstick while it forbade all male bartenders from wearing any makeup at all. For the violation of this "Personal Best" grooming code, Jespersen, who found wearing makeup was an obstacle to performing at her own personal best, was fired. (10)
One of my aims in this Essay is to examine ways in which employment discrimination law can best facilitate what would indeed be each employee's personal best, regardless of sex, gender, or orientation. Among the potential vehicles currently before Congress is the Employment Non-Discrimination Act (ENDA), which would explicitly offer employees some protection from discrimination on the basis of their actual or perceived sexual orientation (including homosexuality, heterosexuality, and bisexuality, but unfortunately not asexuality) (11) and gender identity. (12) I shall set out two sets of concerns about the current version of ENDA. The first includes normative concerns that a turn toward ENDA and away from Title VII could privilege those gender benders who can and do claim an identity as transgender or gay, but could increasingly leave out those who cannot or do not choose to claim such an identity, including those whose transgression of conventional gender norms is less extreme, consistent, or unidirectional. Such a result would be a step backward for the freedom of gender expression and from sex stereotyping for all individuals, betraying the promise of Title VII and making it harder for many employees to give their actual personal best. It is therefore imperative, I shall argue, that progress under Title VII and the increasingly robust line of sex-stereotyping cases that are the progeny of Hopkins be vigorously pursued whatever the fate of ENDA in Congress.
I will also, however, argue as a descriptive and predictive matter that even those single-mindedly focused on protecting employment opportunities for lesbian, gay, bisexual, and transgender (LGBT) employees should have concerns about the limitations on LGBT rights that the provisions of the current version of ENDA might lock into law. Among these are an extremely broad religious exemption, (13) concession to sex-specific grooming standards, (14) the absence of a bona fide occupational qualification (BFOQ), preclusion of disparate impact claims (15) and affirmative action, (16) an extremely broad but potentially confusing definition of gender identity, (17) and an absence of explicit protections for many items of concern to the transgender community, including use of pronouns and bathrooms consistent with an individual's gender identity.
Given, on the one hand, the recent favorable progress in the direction of protection against employment discrimination on grounds of sexual orientation and gender identity in the courts and the EEOC under Title VII (as well as in states and localities under local antidiscrimination laws), and, on the other hand, the severe limitations imposed on such protections by the current text of ENDA, perhaps the most important provision in ENDA is section 15, which provides that ENDA shall not "invalidate or limit the rights, remedies, or procedures available to an individual claiming discrimination prohibited under any other Federal law or regulation or any law or regulation of a State or political subdivision of a State." (18)
Were the current version of ENDA to pass, I fervently hope both advocates and judges take seriously this provision, so that, while they pick up the new tools ENDA offers them, they do not let the recently sharpened tools of Title VII become dull or rusty. I am encouraged in this hope by the EEOC's inclusion as a "national priorit[y]" of its Strategic Enforcement Plan for 2013-2016 "the emerging and developing issue" of "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions." (19)
I. TITLE VII AND THE LEGACY OF HOPKINS
The Text and Legislative History of Title VII Are Sharp Tools to Strike at the Entire Spectrum of Disparate...