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Year 2000 Update on Gender Orientation and Gender Identity Bias Laws Affecting Attorneys, Their Firms and Clients
I. Introduction
Eight states and the District of Columbia currently prohibit sexual orientation discrimination expressly in their employment related statutes. Those states include California, Connecticut, Hawaii, Massachusetts, Minnesota, New Jersey, Vermont, and Wisconsin. In addition several other states prohibit sexual orientation discrimination with respect to public employment within their states: Illinois, Louisiana, Maryland, Michigan, New Mexico, New York, Ohio, Pennsylvania, Rhode Island, and Washington. Many other cities, including Los Angeles and San Francisco, have municipal codes that prohibit discrimination by private employers on the basis of sexual orientation.
With the election of a Democratic Governor in November 1998, laws bottled up by 16 years of Republican Gubernatorial leadership finally saw the light of day in both 1999 and 2000. The legislature both changed and expanded various sections of California Codes, which have an impact on lawyers, the management of their staff, and their relationships with clients.
This paper outlines the year 2000 status of discrimination principles to employees who identify themselves as having the sexual orientation of gay, lesbian, or bisexual, or who identify themselves with the sexual identity of transsexual or trans-gendered. Such employees are collectively identified in this paper as “glbt.” This paper also identifies the most significant changes in legislation in California, and focuses on bias issues that directly effect the management and oversight of law firm relationships in this State.
II. Federal Law
What is Sex? Congress Kept The Definition a Secret
When the U.S. Congress passed the Civil Rights Act in 1964 (“Title VII” of that Act applied to employment relationships), Congressional hearings did not clarify the meaning of the word “sex” as a protected civil rights category. In fact, the original Southern legislators who appended the category of “sex” to the already agreed upon categories of race, national origin, and religion, voted against the 1964 Civil Rights Act once the statute came to them for a full floor vote.
Historians who have examined these original “sponsors” of the “sex” protection category have determined these legislators offered the addition of “sex” primarily as an attempt to garner additional opposition against any civil rights bill. These legislators believed that while many male legislators would avoid opposing racial equality, these same male legislators certainly would resist granting equal rights to their wives, secretaries, and other female subordinates. See C. & B. Whalen, The Longest Debate: A Legislative History of the 1964 Civil Right Act, pp. 115-117 (1985).
In short, the original “congressional intent” for those who advocated protecting women from sex discrimination was to make the entire Civil Rights Act ineffectual. Those who advocated prohibiting sex discrimination also advocated against any federal laws barring race, national origin, and religious discrimination. Those who argued against, but eventually voted for “sex” as a protected category, were opposed to banning “sex” discrimination
In 1964 there was no real debate on the meaning of the word “sex” as that term became incorporated into Title VII. The legislators who offered civil rights protection based on “sex” apparently believed that it was clear who was male and who was female. The legislators never discussed what forms of discrimination might constitute unique forms of gender discrimination.
Several years after 1964, researchers discovered chromosomal differences between males, defined by XY shaped chromosomes, and females, defined by XX shaped chromosomes. Obviously, in 1964 Congress could not have intended for “sex” to have been defined by chromosomes, since scientific identification of chromosomes had not occurred before 1964. We know today, for example, that some persons are defined chromosomally by the XXY combination, or the X0 combination.
We also know that many infants with bodies 100% infused by cells having XY chromosomes look like perfectly wonderful females with full female attributes physically, when such XY infants have a syndrome termed androgen insensitivity syndrome. With androgen insensitivity syndrome, the cellular device that is supposed to “turn on” the male physical characteristics for each cell fails to work, so the entire body looks like a fully formed female. Today, it is theorized that many doctors who discover this syndrome never tell their patients, preferring instead to tell the women that they simply are “infertile” and cannot have children.
We also know that many infants have both sets of genitalia within their systems, and we term such persons hermaphrodites. Because of the dominance of female physical characteristics, in the USA, most hermaphrodites are reared as females.
We also know that many infants are born with easily confusing genitalia, and parents are asked whether they would like to have their children identified as male or female. All of these medical advancements provide interesting foundations for what can actually become the definition of gender or sex.
Federal Courts: Sexual Orientation Discrimination Has Nothing to do with Sex
Since 1964, the application of the doctrine of sex discrimination to the rights of gay, lesbian, and transgender employees at the federal level has been both confusing and non-sensical. In many decisions jurists regularly opined that once an employer admitted it discriminated based on sexual orientation, that same employer could not have also discriminated against the plaintiff on the basis of gender. Obviously, this rationale is illogical, particularly in light of the fact that employers are liable for the consequences of any illegal motive, even if that motive is only part of the decision making process.
In fact, the U.S. Congress rejected a proposed amendment to Title VII in 1964 that would have required plaintiffs to show that an unlawful factor was the “sole factor” for the employer’s decision. 110 CONG. REC. 13837-38 (1964). Both Houses of Congress rejected the “sole factor” test. Senator Case remarked that, “If anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of.” Id. at 13837.
In the Civil Rights Act of 1991 the U.S. Congress expressly provided for the recovery of damages, even if a defendant could prove by a preponderance of evidence that it would have made the same decision without the interaction of the illegal motive. The fact that a totally permissible reason may have explained the entirety of the perpetrator’s decision does not remove the liability that arises from the fact that some part of the decision involved an illegal motive.
The U.S. Supreme Court battled with the issue of whether “sex” discrimination included discrimination based on pregnancy. The Supreme Court finally concluded that discrimination based on pregnancy could never be a form of sex discrimination. General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401 (1976). Congress reacted immediately, saw the logic as illogic, and passed the Pregnancy Discrimination Act to grant sex discrimination coverage in Title VII to pregnancy status. In like manner, a woman deciding to get an abortion is protected under Title VII’s prohibition against sex discrimination. Turic v. Holland Hospitality, Inc., 842 F.Supp. 971 (W.D. Mich. 1994).
While the courts recognized that sex discrimination meant more than proving, “I did this only because you are a woman,” the courts also consistently held that “congressional intent” barred the application of the doctrine of sex discrimination to sexual orientation cases. De Santis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979). Such cases repeated the refrain that Congress never “intended” to prohibit sexual orientation discrimination when it added “sex” to the Civil Rights Act. What the courts repeatedly failed to recognize was that if congressional intent controlled the meaning of “sex,” then advocacy for prohibiting sex discrimination constitutes advocacy against prohibitions on race, national origin, and religious discrimination.
Sexual Orientation Is Irrelevant in Analyzing Sexual Harassment
It is now clear that glbt employees are protected from sexual harassment under Title VII. Oncale v. Sundowner Offshore Serv., Inc., 118 S.Ct. 998 (1998). These employees are protected so long as the harassment is based on the person’s sex. This 1998 Supreme Court case clarified the fact that the sexual orientation (and presumably sexual identity) of the harasser and victim are irrelevant to the analysis of sexual harassment under Title VII. As long as the victim can show that his/her sex was a factor related to the victimization, that employee has the right to bring a case of sex discrimination. Sexual orientation of the parties is essentially irrelevant.
The case made clear that a victim is not required to show some motive towards sexual gratification engendered the harassment. Oncale is significant in that it disposes of the dozens of lower court and appellate court decisions holding that members of the gay, lesbian, and transgender community simply have no protection from sex discrimination, whatsoever.
Sexual Stereotyping Has Always Been Illegal
It should have been clear all along that employees, regardless of their sexual orientation, were protected from sex discrimination. In 1989 the Supreme Court held that discrimination on the basis of sexual stereotyping (also called sexual nonconformism) was illegal. Hopkins v. Price Waterhouse, 490 U.S. 228 (1989).
In the Hopkins case, the employer’s partners made the following statements about Ann Hopkins when evaluating her for potential partnership:
 she needed to take a “course in charm school” “she may have overcompensated for being a woman” her use of profanity was “one of the negatives” about her “she is a lady using foul language” she came across as “macho” she had “matured from a touch-talking, somewhat masculine hard-nosed mgr. to an authoritative, formidable but much more appealing lady partner” she needed “social grace” she should “walk more femininely, wear make-up, have her hair styled, and wear jewelry”Other males criticized females in the firm as follows:
she's a “women’s libber” they are too “curt, brusque, and abrasive” they are like “Ma Barker” and “one of the boys”From these comments, the court held the following:
“In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”
As for the legal relevance of sex stereotyping, “We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group . . . Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id. quoting from Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707, n. 13 (1978). Title VII’s goal is to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir.), cert. denied, 404 U.S. 991 (1971).
“It takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring ‘a course at charm school.’ Nor . . . does it require expertise in psychology to know that, if an employee’s flawed ‘interpersonal skills’ can be corrected by a soft-hued suit, or new shade of lipstick, perhaps it is the employee’s sex and not her interpersonal skills that has drawn the criticism.” Hopkins, supra at 251.
The Amer. Psychological Assn. Has Published Its Research Summary Of Gender Stereotyping
The American Psychological Association (“APA”) filed an amicus curiae brief with the Supreme Court on the issue of sexual stereotyping. Brief for Amicus Curiae American Psychological Association in Support of Respondent, Price Waterhouse v. Hopkins, 109 S. Court. 1775 (1989) (No 87-1167). The APA identified the fact that five decades of research had confirmed consistently the existence of sex stereotypes, including such stereotypes in the employment setting. Id. at 9-10. The APA identified more than 300 articles dealing with sex stereotyping that had appeared during the 14 year period preceding 1987. Id. note 58, at 7 n. 8.
In short, the doctrine of sexual stereotyping is already available, as a method of proving sex discrimination, and the doctrine of stereotyping applies equally to males and females. At least one commentator has found that sexual stereotyping is at the core of discrimination based on sexual orientation. Elvia R. Arriola, Law and the Gendered Politics of Identity: Who Owns the Label ‘Lesbian,’ 8 Hastings Women’s L.J. 1, 2 (1997).
Numerous Courts Provide Samples of Impermissible Sexual Stereotyping
In one Seventh Circuit case, the court considered the sex discrimination claims of two brothers harassed principally by an ex-Marine who harassed one brother because he wore an earring, and the other brother because he was overweight. The harasser asked one plaintiff whether he was a girl, and called him “bitch,” “fag,” and “queer.”
The Court concluded that this plaintiff was “harassed ‘because of’ his gender ... inferred from the sexual character of the harassment itself ... [or] from the harassers’ belief that in wearing an earring, H. Doe did not conform to male standards.” Doe v. City of Belleville, Illinois, 1997 WL 400219 (7th Cir. 1997).
In a New Jersey case, a male worker successfully stated a claim for gender discrimination and harassment, when he showed that his male coworkers harassed him for being a virgin and effeminate. Zalewski v. Overlook Hospital, 692 A.2d 131 (N.J. Super. L. 1996). The stereotyped versions of maleness demonstrated themselves among the harassers when they engaged in the following conduct:
Verbally insinuated plaintiff preferred masturbation over actual intercourse with women. Captioned a picture of a kitten with “the only pussy Bill has ever gotten.” Captioned a photo of a male holding a Penthouse magazine, indicating he was surprised and repulsed at what a woman’s genitalia looked like.From these activities, the Court concluded, “A jury could therefore conclude that plaintiff’s co-workers discriminated against him because he was a male who did not behave as they perceived a male should behave, i.e., that they discriminated against him based on sexual stereotyping.” Id. at 135-36.
The court also referred to Price Waterhouse v. Hopkins, noting that male stereotyping was equally illegal, and referred to concepts of sexual stereotyping identified in “Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence,” authorized by Professor Maryann C. Case. Id. at 135.
In Kovatch v. California Cas. Mgmt. Co., 65 Cal.App.4th 1256 (1998), a California Court of Appeals identified numerous comments made by the managers demonstrating sexual stereotyping of males and females. In Kovatch the facts disclosed managers made the following comments about the plaintiff, a male:
Aldinger said the Hillcrest area where Kovatch lived was the "fag capitol of San Diego." Aldinger said their dinner waiter "looks like a big fag." Aldinger commented that one of the sales representatives was a "fag" because he wore an "earring in his right ear and a big pair of black boots" to the gym. Aldinger said another employee who came to meetings in big black shoes and baggy suits was fired because he was gay. Aldinger commented in a derogatory manner about Kovatch taking a male guest to the symphony. Aldinger said two female sales reps thought Kovatch had a "problem with women." Aldinger said, "I know you have a problem with women." Aldinger asked Kovatch who he was dating, whether he had a child, and whether he slept with any female employees at the company. Aldinger bragged about having slept with female employees from work and causing them to have abortions. The District Manager, Rapp, would not shake Kovatch's hand. Rapp asked Kovatch questions about who he was dating and gave Kovatch a birthday card with imprints of a kiss on it and the message "Where do you want it?" Aldinger once said, "Let me make something loud and clear to you, Dan. I don't like you. You're a faggot, and there is no place for faggots in this company.”In the statements marked by the Court as identifying potential animus against Kovatch, four or five of the statements only indirectly relate to homosexuality. These statements disclosed a sexual stereotyping of “macho” heterosexual male conduct, which the Court associated with impermissible animus on the manager’s part.
The Federal Third Circuit reviewed a sex discrimination claim in which the plaintiff alleged her employer made demands about the wearing of her makeup, her use of eye shadow, and her clothing. In analyzing the sex discrimination claim, the Court noted:
“Undue preoccupation with what female employees look like is not permissible ... if the same kind of attention is not paid to male employees. Traditional ideas about what a woman should look like are not legitimate criteria for evaluating women in the workplace.” Drinkwater v. Union Carbide Corp., 904 F.2d 853, 862-863 (3d Cir. 1990).
The Sixth Circuit recognized that a form of illegal sexual stereotyping exists when an employer assumes that women carry certain attributes that men do not, e.g., the tendency to engage in “pillow-talk” with their spouses about events at work. Vincenti v. Hilliard-Lyons, Inc., 1991 U.S. App. LEXIS 29376 (3d Cir.).
In Adair v. Beech Aircraft Corp., 782 F. Supp. 558 (D. Kan. 1992), the court held that the female parts analyst was the victim of a “discriminatory mind set, sexual stereotyping ....” That Court identified the following actions as constituting evidence of a discriminatory mind set, sexual stereotyping:
The manager, Gary Jacks, had previously referenced females as “gals.” Gary Jacks had invited at least one woman to sit on his “lap.” An Asst.. Manager, Ed Boyd, had stated that, “A woman’s place is in the home.” Male managers disliked Ms. Adair’s characteristics of being a faithful, loyal employee, someone who worked like a “work horse,” all characteristics which the trial judge described as “the very essence of womanhood in the work place.”In addition the Adair court referenced a significant text for an “in-depth discussion regarding the evaluative process of management and how it is affected by notions of appropriate roles and traits of men and women.” Id. at 560. The court referenced the text, Sex, Stereotyping, and the Promotion of Women in Positions of Power, 41 Hastings L.J. 471 (1990).
That journal article was written by Mary Radford who explains the process that occurs in all stereotyping, and applies that process to the work place. Radford also noted studies showing that job candidates are always viewed more favorably when their job seems “appropriate” to their gender. Radford also summaries studies which have identified characteristics most frequently associated with male and female stereotypes. Id. at 494-499.
In general, persons utilizing stereotypes associated with males generally consider the following traits to be “male” traits:
aggressive independent unemotional objective not easily influenced worldly direct self-confident dominant calm active competitive logical business trained adventurous ambitiousAdjectives associated with “female” traits include the following:
talkative tactful religious quiet need for security cheerful sympathetic understanding using gentle language aware of others' feelings neat expressive of feelings loyalty compassionate sensitive to others' needsI recommend serious reading of this article and its references for those preparing to take depositions and gather information from persons accused of utilizing sexual stereotyping in their work place decisions./div>
Christine Craft was an anchor person for KMBC News until the station removed her after receiving negative viewer research about her looks. Craft v. Metromedia, Inc., 572 F. Supp. 868 (W.D. Mo. 1983), aff’d in part, rev’d in part, 766 F.2d 1205 (8th Cir. 1985), cert. denied, 475 U.S. 1058 (1986). Two trials and two jury verdicts in her favor occurred, but ultimately the Eight Circuit affirmed the trial judge’s decision to enter judgment in favor of her employer. The jury viewed the following as evidence of gender stereotyping on the part of Metromedia:
Requiring Craft to conform to their notions of conservative dress. Telling Craft to wear her make-up properly. Refusing to wear clothes with more “feminine touches” and instead choosing suits which her consultants regarded as “too masculine.” Failing to meet the “professional elegance” standard set for women, as contrasted to the “professional image” standard set for men.In contrast the District Court judge blamed Craft’s problems on her “below-average aptitude in matters of clothing and makeup” and her “attitude that her appearance was not critical to her success as an anchor.” Craft, 572 F. Supp. at 878.
In Thorne v. City of El Segundo, 726 F.2d 459 (1983), the Ninth Circuit identified viewpoints disclosing stereotypical ideals about women:
Views about the lack of sufficient aggressiveness. Views about self-assuredness in stress situations. Views about lack of physical strength. A more recent, rather than long term, interest in traditionally male jobs. Judging moral character for females based on sexual conduct, rather than on past acts of honesty or dishonesty.In Mogilefsky v. Superior Court, a California Appellate Court expressly rejected the reasoning in Goleszek v. Smith, 697 F. Supp. 1452 (N.D. Ill. 1988) which had held that demands for the plaintiff to conform to sexual standards for dating, sexual activities, and marriage were not indicia of gender discrimination. Mogilefsky v. Superior Ct. (1993) 20 Cal. App. 4th 1409. Thus, California law bans sexual stereotyping in the same fashion as does federal law.
All these examples show that the prohibition against sex stereotyping still exists. Sex stereotyping takes many forms, but is based on the notion that males and females should exhibit characteristics typical of their respective gender. To the extent that glbt employees assert that the employer discriminates against them on the basis of characteristics which do not fit sexual stereotypes, that allegation does find protection and support in cases decided under Title VII.
III. California Law
California’s Fair Employment & Housing Act Expressly Bars Sexual Orientation Discrimination
Unlike federal law, California’s Fair Employment & Housing Act (FEHA) is the statute governing discrimination on the basis of race, national origin, ethnicity, color, sex, religion, marital status, age, physical and mental disability, and medical condition. Govt. Code §12940 et seq. Except for the subject matter of harassment, the FEHA covers only employers who have at least five full time employees during at least 20 consecutive weeks of the current or preceding year. For the subject matter of harassment, the FEHA covers all employers as soon as those employers have one employee.
California Lawyers May Not Discriminate on the Basis of Genetic Characteristics
The Legislature expanded the definition of “medical condition,” which prior to 1999 was defined solely as any form of cancer in remission. Now the definition of “medical condition” also includes all forms of “genetic status.” One argument presented to the legislature was that biological testing methods have become sophisticated enough that employers could avoid claims of physical or mental disability discrimination by preemptive genetic testing of employees.
The new definition of “medical condition” prohibits this type of discrimination, which may see its greatest impact in the future. The national Genome Project is actually four years ahead of schedule, and the identification of genetic causal factors will probably be one the great debates in decades to come. The scientific evidence derived from that project may actually show a general, or specific, genetic basis for sexual orientation and sexual identity. The possibility exists that science will discover the specific genetic basis for thousands of transgendered females who have said, “I feel like a woman trapped in a male’s body.” If that genetic basis is uncovered, it is possible that California’s genetic status law will outlaw all forms of discrimination against persons who become physical males or females through sex reassignment surgery. Federal law has no comparable protections in Title VII of the Civil Rights Act.
California Lawyers May Not Harass Based on Sexual Orientation, or Perceived Sexual Orientation
The legislature amended the FEHA to also prohibit harassment on the basis of sexual orientation and perceived sexual orientation. Such harassment now violates public policy. Govt. Code §12920. This prohibition on harassment effects all law firms employing even a single employee. Harassment based on sexual orientation, as well as failure to take all reasonable steps to prevent such harassment, by law firms is now expressly prohibited. Govt. Code §12940(h) and (I).
Because all law firms with employees are now subject to the FEHA’s requirements on harassment, all law firms that fail to post the Department of Fair Employment & Housing’s poster on harassment (or an equivalent poster) in the work place are already in violation of the statute. A copy of that poster is attached. Failure to post the harassment notice is itself a violation of statute. Govt. Code §12950.
California Law Firms With Five or More Employees May Not Discriminate on the Basis of Sexual Orientation, Perceived Sexual Orientation
The newly established revision to the FEHA prohibits all forms of sexual orientation discrimination and perceived sexual orientation discrimination. Govt. Code §12926(d), 12940(a). The Dept. of Fair Employment & Housing, which enforces the FEHA, has yet to publish what it understands the legislature to have meant by “perceived sexual orientation” although Department attorneys have indicated they are willing to analyze any arguments that “perceived sexual orientation” should cover those is a transgendered status.
Law firms have more exposure under the FEHA than firms had under the previous California Labor Code. The Labor Code protected only employees who complained within 30 days of the discrimination. The FEHA allows employees up to one year to file complaints. The Labor Code did not provide for the government’s assessment of compensatory damages, whereas the FEHA permits the Dept. of Fair Employment & Housing to assess damages up to $150,000 for each violation. The Labor Code did not specifically provide for the recovery of attorneys’ fees and punitive damages, whereas the FEHA expressly the recovery of both for successful plaintiff employees.
California Lawyers Who Advise, Aide, Abet, or Assist Housing Providers to Discriminate on the Basis of Sexual Orientation Now Violate the Amended FEHA
The newly revised Government Code also prohibits discrimination based on sexual orientation, for the following groups of people: (a) those who offer housing for sale or for rent, (b) those who advertise for such housing, and (c) those who aide and abet either the sale/rental or advertising functions. This prohibition includes attorneys who are now liable both as owners of housing, as well as those who help housing providers with their advertising. Govt. Code §12955(a)(g).
California Attorneys are Liable for Sexual Harassment, Including Sexual Orientation Harassment, of Consultants, Independent Contractors, Interns and Law Clerks
Beginning in 2000, the Govt. Code prohibits sexual and other forms of harassment of any “persons providing services pursuant to a contract.” Govt. Code §12940(h)(3)(4). For law firms such persons would include paralegals, paid interns, and paid law clerks even the attorney classes such personnel as “independent contractors.”
In addition, the following classes of persons who have contractual relations with law firms are automatically protected from sexual and sexual orientation harassment: clients, contract attorneys, delivery persons, photocopy repair persons, bookkeepers, office sub-lessees, cleaning personnel, and arguably, the staff of the Santa Clara County Bar Association.
Remarkably, the legislature chose to make such harassment illegal in the same manner as is sexual harassment against employees. The implication of this new statute is that all forms of sexual harassment, including sexual jokes, sexual invitations and requests, sexual suggestions and pictorial displays, are now disallowed for such contractually related personnel in the same fashion as such conduct is prohibited for employees.
California Lawyers, Not Owners, Have a 12 Month “Window of Harassment” in Which to Harass Other Lawyers with Impunity
In December, 1999 the California Supreme Court held that individual employees who are merely coworkers of, and not supervisors over, plaintiffs alleging harassment, are not liable individually for their own sexual harassment. The good news for employers was that they no longer had to defend lawsuits by employees against co-employees. The bad news was that since employees were not individually liable for their own harassment, the employer bore the full burden of all actual, compensatory, and punitive damages at this point. Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132.
During 2000, one California legislature described the Carrisales decision in this fashion: “You mean the bad guy gets away?”
As a result the California legislature expressly overturned Carrisales and passed legislation making it clear that beginning on January 1, 2001, all coworkers are liable for their own harassment. Because that legislation contained no express retroactive application provision, one might argue that 2000 was, and is, the only single year in which a coworker attorney could sexually harass his/her colleague attorney and get away with it.
Despite this decision, law firm supervisory personnel are still liable for their sexual harassment against subordinates. Reno v. Baird (1998) 18 Cal.4th 640. And the Legislature has expanded the definition of “supervisor” to include all persons who not only make final employment decisions about an employee, but who have the authority to make recommendations regarding hiring, firing, etc. Govt. Code §12926(q).
Is Advocacy of Sexual Orientation Equality a Form of Political Expression? California Says “Yes”
California enacted Labor Code Sections 1101 and 1102 which prohibit employer discrimination against an employee for the expression of political beliefs or for engaging in various political activity. The State Supreme Court has determined that, “[the struggle of the homosexual community for equal rights, particularly in the field of employment, must be recognized as a political activity.” Gay Law Students Assn. v. Pacific T&T Co., 24 Cal.3d 458 (1979). In Gay Law Students the court recognized that political expression is protected for those persons who “identify themselves as homosexual, who defend homosexuality, or who are identified with activist homosexual organizations.” Id.
The Attorney General of California subsequently reviewed the issue of whether these two Labor Code sections provided protections to employees who have not self-identified themselves as homosexual, who have not “come out the closet.” Opinion of Atty. Gen., No. 85-404 (1986). The Attorney General concluded, “the Legislature’s protection for political activity extends to those who have not made a public issue of their orientation as well as those whose stand is openly proclaimed.” Id.
Expressing opinions at work about safe sex practices for gay men has been held in California to be a protected politically expressive activity under these Labor Code Sections. Shell Oil Company fired Jeffrey Collins for preparing a memorandum at work about safe sex procedures for gay men, and the Court held that his activity constituted a “political activity” in light of the AIDS crisis that existed in the San Francisco area at the time. The Court awarded more than $4 million in compensatory and punitive damages for the discharge. Collins v. Shell Oil Co., 56 Fair Empl. Prac. Cas. (BNA) 440 (1991); 1991 Cal. App. LEXIS 783.
An attorney in a northern California law firm sued her firm for wrongful discharge in violation of these same Labor Code provisions, when the firm fired her for making comments about lesbian attorneys openly identifying their own sexual orientation. When the law firm moved for summary judgment, the Court commented that discussing gay rights with other employees, or engaging in activities with the gay and lesbian community outside her law firm, were probably expressions of political view protected under the Labor Code. Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227 (N.D. Cal. 1993).
IV. Conclusion
Prosecution of sexual orientation and sexual identity claims is available in California under federal law (Title VII), California law (the FEHA), and via the California Constitution. Attorneys who handle such cases on behalf of employee clients must be very careful in preparing and wording complaints with the federal and state agencies, as well as wording the complaints in court, because the wording of such complaints is often the “ticket to safety” for defense attorneys who use such wording to have the claims dismissed.
In managing one’s California law firm, lawyers must recognize that their obligations to refrain from sexual harassment extends to relationships with employees, clients, contractors, tenants, and anyone else with whom the attorney has a professional or contractual relationship. Sexual harassment of gay, lesbian, bisexual, and arguably transgendered employees is equally as violative of California law as is discrimination against straight persons.
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