The Gay Accent, Gender, and Title Vii Employment Discrimination

• Publication year: 2013

Washington Law ReviewVolume 36, No.4, SUMMER 2013

The Gay Accent, Gender, and Title VII Employment Discrimination

Ryan Castle(fn*)

"His purse just fell out of his mouth." - Gay Colloquialism

I. INTRODUCTION

While race, religion, ethnicity, and sex will always remain salient social issues in our nation, sexual orientation is currently at the forefront of our national debate and will likely not abate in the foreseeable future.(fn1) This necessarily implicates longstanding sex and gender debates.(fn2) Courts must adapt to new understandings of discrimination when ruling within the confines of Congress's civil rights legislation. Federal courts, for example, struggle in differentiating sex, gender, and sexuality when adjudicating Title VII(fn3) employment discrimination claims.(fn4) Because Title VII does not protect employees from sexual orientation-based discrimination,(fn5) plaintiffs who are or are perceived to be of a sexual minority have difficulty proving a valid sex-based discrimination claim in federal court.(fn6) This difficulty arises because one cannot perceive sex, gender, and sexuality without muddling the stereotypes associated with each one.(fn7) Social science can help separate gender and sex characteristics from sexual characteristics; these distinctions expose deeper social biases toward sex, gender, and sexuality.

This Comment examines one of these characteristics: the male voice.(fn8) Discrimination based on the sound of one's voice tends to force men to conform their voices to male stereotypes, a process known as covering.(fn9) For men, this means sounding like a masculine heterosexual man.(fn10) These attempts at covering or negotiating one's identity can have deleterious effects on employee self-identity, work productivity, and ability to bring discrimination claims in the future.(fn11)

We perceive identity by comparing behavior to stereotypes. Socio-linguist Kathryn Campbell-Kibler describes this interaction between identity and stereotype as "style."(fn12) In particular, "[l]inguistic cues are tied, not to sexual orientation, but to recognizable ways of being in the world-in other words, to styles. Sexual Orientation merely represents one piece of information that may (or may not) be implicated in a stylistic performance."(fn13) Employers are no different from the rest of society.(fn14) They not only respond to identity status, such as sex, but also to stereotypical conduct, such as sounding like a man should sound.

Federal courts have addressed alleged discrimination partly based on a male employee's gay or effeminate voice in six cases, with mixed results. This Comment argues that when male employees are discriminated against partly based on their voice being perceived as gay-what I term the gay accent(fn15)-this discrimination should be seen as sex discrim- ination through a mixed-motive analysis.(fn16) The gay accent is a gender construction; it is not tied to sexual orientation.(fn17) Having a gay accent does not mean that a man is homosexual. To adhere to the purpose of Title VII, courts should consider the behavior of the allegedly gay employee, actions of the harasser, and modern understandings of bias when ruling whether a legitimate sex discrimination claim exists.(fn18) Using this more holistic approach, courts should be wary to dismiss pleadings or enter summary judgment for employers; rather, courts should submit these ambiguous cases to a jury.

To reach this conclusion, Part II will first examine sociolinguistic studies defining the gay accent, society's perceptions of the gay accent, and then the accent's possible causes. Part III first discusses the boundary between sex and sexual orientation discrimination, and then outlines gay-accent jurisprudence. Part IV argues for a more holistic view of circumstances surrounding the harassment of gay male employees, thereby showing that Title VII protects those harassed on account of their gay accent. Part V concludes.

II. GAY PHONETICS

A. Evolution of Gay Linguistics

Sociolinguistic studies on gay speech have evolved from documenting word choice to a more phonetic approach by measuring acoustic differences between gay and straight speech.(fn19) Within these newer studies, surveys tend to compare either gay men and straight men(fn20) or gay men and straight women.(fn21) Typically, listeners rate and describe the voice they hear from individual words or a variety of passages.(fn22) When one of two speakers is perceived as sounding more gay than the other, for example, the study directors compare the differences between the two sets of voices in order to find which vocal markings are distinct.(fn23) Some linguists, however, isolate one acoustic marker, digitally manipulate it, and play the recordings to listeners to gauge their perceptions based on the change in one marker.(fn24) But a combination of markings is also likely to change perceptions and thus skew some studies' results.(fn25) As the relevant literature develops, sociolinguists are also taking into account that a gay man's speech, like any speech, depends on his audience, his subject matter, and his geographic influences.(fn26) Ultimately, social context and methodology can make it difficult to pinpoint gay-accent markings.

Despite problems with cementing definite linguistic markings in the gay accent, sociolinguistic research can provide some general conclusions. The acoustic markers typically analyzed in gay speech studies are: (1) consonants /s/,(fn27) /z/,(fn28) and /l/;(fn29) (2) formant vowels;(fn30) (3) pitch;(fn31) (4) frequency;(fn32) (5) /ing/;(fn33) (6) voice onset time;(fn34) and (7) the neutral schwa sound.(fn35) Using these markings, researchers have asked listeners to rate voices, along a spectrum or by means of a binary choice, as masculine or feminine, gay or straight, and other social perceptions.

B. Perceptions and Realities of the Gay Accent

Gay-accent studies have attempted to corroborate or dispel common social stereotypes of the gay accent, namely the /s/ sound and pitch. Some linguists analyzed these sounds by recording listener perceptions on a masculine-feminine spectrum, a gay-straight spectrum, or both. Others empirically compared speech differences between gay and straight men.

First, Campbell-Kibler's study, representative of /s/ phonetic analy-sis,(fn36) found that /s/-fronting created a perception in speakers as being less masculine and more gay sounding.(fn37) It also found that /s/-fronting made the speaker sound less competent, but /s/-fronting and /s/-backing made the speaker sound less confident than a mid-/s/ sound.(fn38) The study's author notes, however, that perceptions of /s/-fronting may have been influenced by common social perceptions of the gay lisp.(fn39) Moreover, listeners are influenced by clusters of speech patterns, not simply by the use of /s/-fronting. Combining the phonetic variables of /s/-fronting, /s/-backing, and /ing/ showed that the more masculine one was perceived, the more competent he was also perceived.(fn40) Also, using that same phonetic combination, the less masculine a man was perceived, the more gay he was also perceived.(fn41)

Studies also debate about whether these perceptions correlate with actual sexuality. Gaudio's small, early study found that there was no pitch difference between what sounded masculine or feminine, and no pitch difference between gay and straight men.(fn42) The study did find, however, that there was a strong correlation between sounding gay, sounding feminine, and actually being gay.(fn43) But many of these correlations are dependent on the type of passage being read: technical or dra-matic.(fn44) In contrast, Smyth and Rogers's more comprehensive study found a gaydar accuracy rate of only about 57% for a sample of 46 listeners, despite the fact that they exhibited a good deal of agreement about which voices sounded gay. According to our listeners' ratings, most straight men and many gay men sounded straight; some gay men sounded gay, to varying degrees, and some straight men also sounded gay. Some men had voices that were not clearly marked as either gay- or straight-sounding.(fn45)

Second, rather than attempting to correlate perceived and real sexuality, other linguists have used an empirical method to find linguistic differences between gay and straight men. Rendall, Vasey, and McKenzie's study found that gay men had a higher F1 pitch in the vowel sound beet and a higher F2 pitch in the vowel sounds butt and boat(fn46) Both pitches, however, were distinct in the schwa sound: F1 was lower, F2 was high-er.(fn47) Yet the study noted that, because the gay men in its sample were shorter on average than the straight men, and because height affects the length of the vocal tract and thus pitch, differences in formant vowel pitches are likely not statistically significant.(fn48) But as Levon's study concluded, high variation in pitch range is more of an indicator of a gay accent than mere high or low pitch by itself.(fn49)

These findings show that the gay accent is not easily distinguishable; there is no one gay accent. A voice may have all or one of the characteristics and be perceived as gay or straight, masculine or feminine. Even then, any conclusion must also take into account the differences in listener audio capabilities. Nevertheless, the studies do show a positive correlation between sounding gay and sounding feminine, and likely no...