Of meat and manhood.

• Author: Kramer, Zachary A.
• Position: Gender-stereotyping theory

TABLE OF CONTENTS INTRODUCTION I. CONTEXT A. The Fundamentals B. The Boundaries of "Sex" 1. Sex 2. Gender 3. Beyond the Boundary: Sexual Orientation C. Bootstrapping II. OF MEAT AND MANHOOD A. The Male Vegetarian B. The Claim C. Rereading the Claim 1. Meat and Manliness 2. Fruits D. Bootstrapping Vegetarianism. III. A NEW APPROACH A. Trait Neutrality B. The Framework in Action C. Concerns 1. Everything Is Sex Discrimination 2. Muddying Intent CONCLUSION [P]ity the male vegetarian who needs real courage and fortitude, as he is battered from all sides by the incomprehension and ridicule of the world around him.

--Barbara Ellen (1)

You are what you eat. So make it a Hungry-Man. With a full pound of meat and potatoes, you can eat like a man and be full like a man.

--Hungry-Man Frozen Dinner Advertisement (2)

You don't even eat steak dude. At what point in time did you realize you were gay?

--Complaint, Pacifico v. Calyon in the Americas (2)

INTRODUCTION

In 2006, the fast food chain Burger King began airing a television advertisement for its new Texas Double Whopper, titled "Manthem." (4) The commercial featured a musical number, complete with elaborate choreography and intricate stunt work, sung to the tune of Helen Reddy's classic song "I am Woman." (5) In the original version of the song, Reddy sings about female empowerment, famously declaring, "I am strong, I am invincible, I am woman." (6) The singer in Burger King's man-minded version, by contrast, belts out that he is "way too hungry to settle for chick food." (7) Neither tofu nor quiche can satisfy his appetite; only the Texas Double Whopper will do. (8) As he sings at the end of the song, "I am hungry, I am incorrigible, I am man." (9)

Of course, the commercial is not meant to be taken too seriously. The last thing we would expect a ravenously hungry man to do is break into song about a hamburger. Nor would we expect him to be joined by hundreds of other hungry men on parade. (10) And the sight gags are intentionally over the top--the parading men burn their underwear (instead of their bras), they overturn a minivan, and they punch each other in the stomach, all the while devouring their Texas Double Whoppers. (11) Yet the commercial works because it taps into a stereotype about the relationship between meat and manhood.

The idea that "real" men eat meat is firmly embedded in our culture. (12) For those men who are benefitted by the stereotype, eating meat serves as a confirmation of their manhood, a kind of marker of their privileged status as masculine men. This is not the case for men who do not eat meat. In our culture, a man who does not eat meat is often seen as insufficiently masculine.

Take Prince Fielder. Fielder plays first base for the Milwaukee Brewers. (13) Standing five-foot-eleven inches tall and weighing 275 pounds, (14) Fielder is one of the most powerful hitters in all of professional baseball. He is also vegetarian. According to a New York Times story about his vegetarianism, Fielder gave up eating meat after reading about and becoming "totally grossed out" by the treatment of cattle and chicken. (15) As soon as his decision became public, fans and critics questioned whether Fielder's game would suffer on account of his new diet. (16) Although it goes unsaid, these concerns are based on a gender stereotype, namely, that athletes need to eat meat in order to be successful; they will become less athletic--and therefore less masculine--if meat is not part of their diet. (17) Not surprisingly, Fielder has continued to be a strong hitter since becoming vegetarian. But the important point is not that Fielder proved he could be both a good hitter and a vegetarian, but rather that the New York Times covered his switch to vegetarianism. indeed, that the paper even considered Fielder's vegetarianism to be newsworthy is telling of the extent to which the relationship between meat and manhood is embedded in the fabric of our culture.

In this Article, I use the relationship between meat and manhood as a springboard to challenge the way in which employment discrimination law--more specifically, Title VII of the Civil Rights Act (18)--conceives of sex discrimination. The Article focuses in particular on what is perhaps the most transformative theory of sex discrimination--the gender-stereotyping theory of sex discrimination. The thrust of the gender-stereotyping theory is that an employer cannot discriminate against an employee for failing to conform to stereotypical gender expectations. (19) The Supreme Court announced the theory in (1989), in the seminal case Price Waterhouse v. Hopkins. (20) in doing so, the Court ushered in a new wave of sex discrimination claims, shifting the focus of Title VII's sex discrimination project from formal sex segregation to more subtle forms of discrimination concerning how employees look and behave in the workplace. (21)

The gender-stereotyping theory has begun to stumble in recent years, however. Courts have grown increasingly suspicious of gender-stereotyping claims that they view as attempts to capture traits not protected under Title VII. The paradigm situation is discrimination against lesbian and gay employees. Courts uniformly agree that sexual orientation is not a protected trait under Title VII. (22) Against this doctrinal backdrop, lesbian and gay employees have been bringing gender-stereotyping claims--as opposed to sexual orientation claims--as a means to combat the discrimination they face in the workplace. Yet courts have regularly rejected these claims, characterizing them as impermissible attempts to "bootstrap" protection for sexual orientation into Title VII. (23) The theory behind this bootstrapping logic is that these gender-stereotyping claims are not sincere sex discrimination claims, but rather a kind of litigation sleight of hand, a way for employees to create statutory protection where no such protection exists. (24)

My goal in this Article is to show that this bootstrapping logic is faulty. The vehicle for critiquing it is a case study involving an ongoing lawsuit in which an employee has brought a discrimination claim against his former employer, alleging that the employer discriminated against him because he is vegetarian. (25) The employee's claim has two dimensions. First, the employee charges that his supervisor taunted him because of his vegetarianism, calling him, among other things, a "vegetarian homo." (26) Second, the employee alleges that the discrimination culminated in his being fired because of his vegetarianism. (27) In general, the thrust of the employee's claim is that he faced discrimination because he failed to conform to the stereotype that "real" men eat meat, putting him squarely within the confines of the gender-stereotyping theory.

The male vegetarian case study is especially useful because it highlights the messiness of modern sex discrimination law in two ways: first, in terms of how employees experience discrimination; second, in terms of how courts analyze sex discrimination claims. The male vegetarian's case is particularly messy because it involves three overlapping identity traits--vegetarianism, sexual orientation, and gender nonconformity. While two of these traits are not protected under Title VII (vegetarianism and sexual orientation),(28) the third--gender nonconformity--is not only protected under Title VII but also happens to be the basis for one of the most expansive theories of sex discrimination available to employees under existing sex discrimination norms. Yet the male vegetarian will have a hard time convincing most courts that he faced discrimination because of sex and not because of either vegetarianism or sexual orientation, or some combination of the two. Faced with such a case, most courts would likely reject the case as bootstrapping simply because it involves unprotected traits. This Article proposes a more holistic approach to complex sex discrimination claims. The core of this new approach is that sometimes sex discrimination manifests as other forms of bias. in the male vegetarian's case, what may look like "vegetarian" or "sexual orientation" discrimination is really "sex" discrimination in the form of gender stereotyping.

In terms of its broader contribution, then, this Article seeks to develop a theory of unprotected traits in employment discrimination law. The flaw of the bootstrapping logic is that it gives too much weight to unprotected traits in the discriminatory causation analysis, allowing unprotected traits to overwhelm the aspects of an employee's claim that are based on protected traits. My new framework would render unprotected traits neutral for purposes of proving a discrimination claim. By neutral, I mean that an unprotected trait should neither give rise to an actionable discrimination claim nor spoil an otherwise actionable claim. underlying this framework is a principle of trait equality: just as all protected traits are similarly situated with respect to proving a discrimination claim under Title VII, no unprotected trait--whether vegetarianism, sexual orientation, or that the employee roots against the Chicago Bears (29)--should be worse off than all other unprotected traits when it comes to proving a discrimination claim.

This Article proceeds in three parts. Part I puts my argument in context by situating the bootstrapping logic more broadly in Title VII case law and sketching the contours of Title VII's prohibition on discrimination "because of sex. Part II turns to the male vegetarian case study. After providing an account of the employee's case, the centerpiece of this Part is an alternative reading of the employee's discrimination claim. This alternative reading is built around the idea that discrimination is not always as it seems. While the employee's case may look like vegetarian--or even sexual orientation--discrimination, it is really a case of sex discrimination in the form of gender...