Abstract

http://ssrn.com/abstract=2335132
 


 



Perceived Homosexuals: Looking Gay Enough for Title VII


Brian Soucek


University of California, Davis - School of Law

October 2, 2013

American University Law Review, Vol. 63, 2014
UC Davis Legal Studies Research Paper No. 353

Abstract:     
Under the conventional view of Title VII, gay and lesbian workers can bring discrimination claims based on gender stereotyping but not sexual orientation. This Article analyzes 117 court cases on gender stereotyping in the workplace in order to show that the conventional view is wrong. In cases brought by “perceived homosexuals,” courts distinguish not between gender stereotyping and sexual orientation claims, but between two ways that violations of gender norms can be perceived: either as something literally seen or as something cognitively understood. This Article shows that plaintiffs who “look gay” often find protection under Title VII, while plaintiffs thought to violate gender norms — through known or suspected sexual activity, friendships, hobbies, or choice of partner — almost never win.

By privileging appearances over identity, these cases run counter to theories of antidiscrimination law that favor blindness and assimilation, and they upend accounts of “covering” that are widely accepted in discussions of law and sexuality. These cases reverse courts’ usual hostility to appearance claims, especially Title VII challenges to makeup and grooming requirements, as well as courts’ usual sympathy to claims based on activities like child rearing, known to take place outside of work. Meanwhile, on a practical level, these cases threaten to increase the salience of sexual orientation in the workplace; help entrench the stereotypes they are meant to proscribe; and isolate the claims of successful Title VII litigants from the more assimilationist demands made by gay plaintiffs in areas like marriage, adoption, and military service. As courts have quietly begun granting protection to only the most visible subset of gay workers, this Article asks: at what cost, both to LBGT workers and to ongoing debates over the protections those workers should receive under federal law?

Number of Pages in PDF File: 74

Keywords: Title VII, gender stereotyping, employment discrimination, law and sexuality, ENDA, LGBT workers, Price Waterhouse

Accepted Paper Series





Download This Paper

Date posted: October 4, 2013 ; Last revised: March 28, 2014

Suggested Citation

Soucek, Brian, Perceived Homosexuals: Looking Gay Enough for Title VII (October 2, 2013). American University Law Review, Vol. 63, 2014; UC Davis Legal Studies Research Paper No. 353. Available at SSRN: http://ssrn.com/abstract=2335132

Contact Information

Brian Soucek (Contact Author)
University of California, Davis - School of Law ( email )
400 Mrak Hall Dr
Davis, CA 95616
United States

Feedback to SSRN


Paper statistics
Abstract Views: 746
Downloads: 98
Download Rank: 161,548

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.328 seconds