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Sexual stereotypes - perceived to be gay
July 22, 2006 by Ross Runkel at LawMemo
Co-workers harassed Christopher Vickers because they thought he was gay. Vickers thought that was sex stereotyping in violation of Title VII, but the 6th Circuit disagreed. Vickers v. Fairfield Medical Center (6th Cir 07/19/2006) (2-1 vote).
The United States Supreme Court in Price Waterhouse v. Hopkins, 490 US 228 (1989) held that making employment decisions based on sex stereotyping (i.e. - the degree to which an employee conforms to traditional notions of what is gender-appropriate) is actionable gender discrimination under Title VII.
The 6th Circuit rejected Vickers' reliance on Price Waterhouse, however, stating "[w]e conclude that the theory of sex stereotyping under Price Waterhouse is not broad enough to encompass [Vickers' case] .... "
The court noted that "Price Waterhouse focused principally on characteristics that were readily demonstrable in the workplace, such as the plaintiff's manner of walking and talking at work, as well as her work attire and her hairstyle." The court also noted that "[b]y contrast, the gender non-conforming behavior which Vickers claims supports his theory of sex stereotyping is not behavior observed at work or affecting his job performance."
The court opined that "[u]ltimately, recognition of Vickers' claim would have the effect of de facto amending Title VII to encompass sexual orientation as a prohibited basis for discrimination. In all likelihood, any discrimination based on sexual orientation would be actionable under a sex stereotyping theory if this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices."
The DISSENT argued "I do not believe we can conclude on the basis of the pleadings alone that the harassment endured by the plaintiff was motivated solely by the defendants' perception that he was a homosexual, as distinguished from a belief that for reasons other than sexual preference the plaintiff did not conform to the stereotypical image of masculinity .... Because the majority believes that the case can be resolved on the pleadings alone, I respectfully dissent."
See what some others are saying:
- Leonard Link - Same-Sex Harassment Fails in the 6th Circuit says the case "is really out of step with other same-sex harassment decisions."
- Jottings By An Employer's Lawyer - Holding the Line on Gender Stereotyping says, "The dissent was from a district judge sitting by designation, so it will be interesting to see if there are enough votes on the Court to give this case a broader hearing. My guess -- no."
- Workplace Prof Blog - Distinguishing Gender Stereotype Discrimination from Sexual Orientation Discrimination says, "I think this decision is just plan wrong."
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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