Perceived Homosexuals: Looking Gay Enough for Title VII

74 Pages Posted: 4 Oct 2013 Last revised: 28 Mar 2014

See all articles by Brian Soucek

Brian Soucek

University of California, Davis - School of Law

Date Written: October 2, 2013

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?

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

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: https://ssrn.com/abstract=2335132

Brian Soucek (Contact Author)

University of California, Davis - School of Law ( email )

400 Mrak Hall Dr
Davis, CA CA 95616
United States

HOME PAGE: http://law.ucdavis.edu/faculty/soucek

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