Price's progress: sex stereotyping and its potential for antidiscrimination law.

• Author: Herz, Zachary R.
• Position: II. Antigay Discrimination, or Sex Stereotyping? Comparing Price Waterhouse and ENDA in Selected Employment Contexts through Conclusion: Price's Promise, with footnotes, p. 422-446

2. ANTICAY DISCRIMINATION, OR SEX STEREOTYPING? COMPARING PRICE WATERHOUSE AND ENDA IN SELECTED EMPLOYMENT CONTEXTS

   Employment protections for LGBT plaintiffs under current law are, to say the least, a piece of work. Courts considering claims by LGBT plaintiffs must balance prohibitions on discrimination based on ideas about how men and women should behave with a total lack of explicit federal protection against antigay discrimination. This riddle bedevils both courts, which struggle to differentiate between gender deviance and sexual orientation, and advocates, who use Price Waterhouse protections to the best of their ability while also fighting for LGBT protections under a different, more traditional model. These advocates have met with some success - many states and municipalities offer formal protection against sexual orientation and gender identity discrimination, creating an environment in which anti-LGBT discrimination can be fought using two vastly different theories. These fact patterns are ideal test cases for exploring just how Price Waterhouse differs from traditional understandings of Title VII. More importantly, these cases show how Price Waterhouse improves on those understandings and offers solutions to truly vexing problems in American antidiscrimination law. After briefly considering the state of current and proposed law addressing sexual orientation, gender identity, and gender deviance discrimination, this Part uses the LGBT example to show how Price Waterhouse can address "corner cases" in which clear discrimination cannot be fit into traditional Title VII standards of proof.

   1. Price Waterhouse and ENDA: The Bifurcated Landscape of Sexual Orientation Discrimination

      LGBT plaintiffs currently have two separate theories for redressing antigay discrimination, but both are limited and highly contingent. Many courts have interpreted Price Waterhouse to hold that discrimination against LGBT employees is based on their perceived violation of gendered prescriptions and thus constitutes sex stereotyping, but only if the discrimination arises from the plaintiffs perceived gender deviance and not from anti-LGBT bias per se. Otherwise, a separate, older doctrine bars relief. The first case to address Title VII's applicability to sexual minorities, DeSantis v. Pacific Telephone & Telegraph Co., (129) used legislative history to foreclose "bootstrapping" sexual orientation protection into Title VII. (130) DeSantis has never been addressed by the Supreme Court, but it (and decisions like it in other circuits) bar relief for plaintiffs alleging sexual orientation discrimination. However, plaintiffs who allege that they were seen as violating gender stereotypes may seek relief under a Price Waterhouse theory, even if the harasser perceived his victim as homosexual, (131) and even if large parts of the harassment consisted of antigay speech. (132)

      The DeSantis plaintiffs alleged that discrimination against homosexuals constituted "sex-plus" discrimination against men under Martin Marietta (133) and also had a disparate impact on men due to higher incidence of homosexuality among males as opposed to females. (134) The DeSantis court first rebuffed the plaintiffs' claims of "sex-plus" discrimination by asserting that homosexual men and women were being treated equally: "[W]e note that whether dealing with men or women the employer is using the same criterion: it will not hire or promote a person who prefers sexual partners of the same sex." (135) This theory--that ideas about how members of one sex should behave are acceptable as long as they are accompanied by "mirror-image" (136) rules for the other--no longer holds in the Ninth Circuit. (137) But even in circuits that require asymmetrical disparate treatment of men and women, courts have found that antigay or antitrans harassment can violate Title VII. (138)

      The DeSantis court's other argument against relief--its appeal to legislative history (139)--is no more dispositive. DeSantis's explicitly redistributive reading of Title VII as exclusively focused on "plac[ing] women on an equal footing with men" (140) is difficult to square with Oncale, (141) to say nothing of Ricci v. DeStefano. (142) Going forward, the fear of "bootstrap[ping]" that courts frequently invoke in denying Price Waterhouse protection to gender-deviant homosexual plaintiffs (143) is likely misplaced. Nevertheless, DeSantis and its progeny are still widely cited for the proposition that, if Congress had intended Title VII to forbid sexual orientation discrimination, it would have said so. If this seems confusing, it is: courts that adopt the broader reading of Price Waterhouse have struggled to reconcile prohibiting discrimination based on gender deviance with permitting discrimination against individuals whose sexual orientation leads them to be perceived as gender deviant.

      Two cases illustrating both sides of this coin are Nichols v. Azteca Restaurant Enterprises (144) and Dawson v. Bumble & Bumble. (145) Both cases involved gay employees facing adverse employment action. However, because the Nichols plaintiffs were able to frame their claim in formally sexual-orientation-neutral terms, they succeeded where Dawson failed. The Nichols court, focusing on instances in which a gay male server was referred to as "'she' and 'her.' ... and a 'fucking female whore,"' (146) found that the harassment, while consisting partly of antigay slurs, "reflected a belief that [the plaintiff] did not act as a man should act" (147) and thus gave rise to a colorable claim of Price Waterhouse sex stereotyping. By contrast, because Dawn Dawson "conflated" her claims of sex stereotyping with claims of explicit antigay discrimination, (148) and because "[t]he law is well-settled in this circuit and in all others to have reached the question that .... Title VII does not prohibit harassment or discrimination because of sexual orientation," (149) Dawson's claims, according to the court, constituted impermissible bootstrapping of sexual orientation into existing protections.

      As Zachary Kramer, Brian Soucek, and others have noted, this case law is both doctrinally and descriptively incoherent; Kramer decries courts' subsuming all prescriptive sex stereotyping of gay plaintiffs into "sexual orientation simpliciter claims in disguise," (150) whereas Soucek notes that courts attempting to separate antigay bias from ideas about gender deviance do so "solely by fiat." (151) This problematic case law puts LGBT plaintiffs in a delicate position and can doom unsophisticated plaintiffs who do not carefully observe the artificial distinction between antigay bias and gender norms that courts require. However, courts' insistence on this distinction arises in large part from case law holding that, by refusing to amend Title VII to explicitly protect LGBT workers, Congress has made clear its lack of intent to do so. (152)

      LGBT rights organizations are now attempting to write explicit legal protections for LGBT workers into state and federal law. Recently, gay-rights groups have been able to pass variants of ENDA in more than twenty states and the District of Columbia, (153) and they hope to pass a federal version in the next few years. A federal ENDA would have far-reaching implications; in addition to providing relief in straightforward sexual-orientation-discrimination claims, (154) such a law would vitiate the doctrine forbidding "bootstrap [ping]" (155) sexual orientation claims into Title VII and would allow for a far cleaner application of sex stereotyping to cases involving gay and lesbian plaintiffs. However, the application of ENDA, and the gaps in current law that it seeks to address, are themselves subjects of debate. The EEOC recently ruled that discrimination against transgender workers already violates Price Waterhouse (156) and is bringing similar claims on behalf of victims of anti-LGB discrimination. (157) Meanwhile, President Obama has signed an executive order instituting protections modeled on ENDA for employees of the federal government and its contractors. (158) Consequently, disentangling the potential protections offered by ENDA from those found in Price Waterhouse is a serious challenge, and one that this Part hopes to address.

      It is always difficult to interpret hypothetical legislation. However, in order to determine exactly how ENDA would differ from the protections Price Waterhouse provides, we must first sort out what exactly ENDA would do. The most recently proposed legislation states that "[i]t shall be an unlawful employment practice for an employer ... to discharge any individual .. . because of such individual's actual or perceived sexual orientation or gender identity," (159) mimicking the language of Title VII itself. However, it is currently unsettled whether ENDA would contain Title VII's motivating-factor language. The version of the bill introduced in the House of Representatives does not contain an equivalent to the Civil Rights Act's "motivating factor" test, and in the absence of such language, the Supreme Court has consistently interpreted "because of' as requiring strict but-for causation. (160) By contrast, the Senate version of the bill includes Title VII's motivating-factor and same-decision tests. (161) Until legislation is passed, it is impossible to know which version will be written into law. Nevertheless, while the impact of this split could be substantial for plaintiffs like Ann Hopkins, whose employers used both proper and discriminatory evaluative tools, (162) courts still generally read this language to require group disparities in treatment in every context but prescriptive sex stereotyping. The motivating-factor provisions of Title VII recognize discrimination without a difference in outcome at the individual level. However, outside of cases that challenge gender conformity demands and are thus understood as falling under Price Waterhouse, this form of...