Nine states and the District of Columbia currently prohibit sexual orientation discrimination expressly in their employment related statutes. In addition several other states prohibit sexual orientation discrimination with respect to public employment within their states. Many other cities, including Los Angeles and San Francisco, have municipal codes that prohibit discrimination by private employers on the basis of sexual orientation.

This paper outlines the year 2001 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 transgendered. Such employees are collectively identified in this paper as “glbt.”

When Congress passed the Civil Rights Act in 1964 (Title VII of which dealt with employment), 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.

Most 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 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 defined by 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 never works, 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 intersexed persons. Traditionally, most intersexed persons have been reared as females because of the size of the genitalia's protuberance, and because experts in the field of psychology who opined that “nurture can control nature” with regard to sex identification. All these medical realities now provide interesting foundations for what can actually become the definition of gender or sex.

Since 1964, the application of the doctrine of sex discrimination to the rights of gay, lesbian, and transgender employees has been both confusing and non-sensical. In many decisions jurists regularly opined that once an employer admits discrimination 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.

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 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. That Court finally concluded that discrimination based on pregnancy could never constitute a type of sex discrimination. General Electric Co. v. Gilbert, 429 U.S. 125, 97 S. Ct. 401 (1976). Congress reacted immediately, saw the logic as absurd, 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).

In short, an employer's claim that it discriminated on the basis of sexual orientation is no excuse, so long as some evidence of sex discrimination in some form (e.g., sexual stereotyping) existed in the perpetrator's thought process.

It is now clear that glbt employees are protected from sexual harassment under Title VII. Oncale v. Sundowner Offshore Serv., Inc., 118 S. Court. 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.

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:

Other males criticized females in the firm as follows:

From these comments, the court held the following:

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).

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).

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:

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:

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:

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:

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:

Adjectives associated with “female” traits include the following:

I 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.

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:

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:

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.

In Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001) the Ninth Circuit identified these behaviors by males towards the male plaintiff as disclosing sexually stereotyped ideas about men:

In the Nichols case, the Ninth Circuit approved the sexual stereotyping theory discussed in Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999). In that case, the court rejected the gay man's claims of sexual stereotyping, not because the theory was not available, but because his attorney had failed to raise this argument at the lower court. Referring to Price Waterhouse, the court held that, “[J]ust as a woman can ... claim that men discriminated against her because she did not meet stereotyped expectations of femininity [citations omitted] a man can ground a claim on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity.” Higgins at 261, n.4. The court termed these coworker abuses as requiring Higgins to have “toiled in a wretchedly hostile environment:”

In Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000), the Ninth Circuit evaluated the claims of sex discrimination and violations of the Gender Motivated Violence Act which sprang from a prison guard's sexual assaults and attempted rape of a pre-operative transgendered female. The prison guard, Mitchell argued that Schwenk could not plead a case of gender discrimination, because transsexuals were barred from bringing claims under Title VII of the Civil Rights Act, after engaging in the following behaviors:

The Ninth Circuit held that the previous distinction between “sex” and “gender” among a number of courts was illogical, that the prior cases rejecting transgender discrimination as banned by Title VII were obsolete since the Price Waterhouse decision. Where persons “whose outward behavior” does “not meet social definitions of masculinity,” those persons are victims of gender discrimination. Where someone fails to “act like a man” or fails to conform to socially constructed gender expectations, and is discriminated against as a result, that person is the victim of sex discrimination. “Discrimination because one fails to act in the way expected of a man or woman is forbidden under Title VII.”

Similarly, the Eight Circuit held that a man who pleads that he has been “perceived” as homosexual may have viable claims for sex discrimination under Title VII. A man has a viable claim when he alleges his tormentors tried to “debase his masculinity” by engaging in the following acts:

The Court concluded by noting that a plaintiff may prove, but does not necessarily have to prove, his case of discrimination by showing (1) his harassers were motivated by sexual desire, (2) males were treated worse than females, or (3) his harassment was so sex-specific as to raise an inference of sex based animus.

Remarkably, in Rene v. MGM Grand Hotel, Inc., 243 F.3d 1206 (9th Cir. 2001) the Ninth Circuit, held by a 2-1 vote that Rene's claims that he was the victim of sexual harassment because of his open homosexuality, did not support a claim for sex discrimination under Title VII. Rene alleged that over a two year period, while working as a butler in the hotel's 29th floor, his supervisor and coworkers victimized him both verbally and physically. These men:

The majority held that the behavior “was so objectively offensive that it created a hostile work environment.” The majority quoted Oncale and admitted that same-sex hostile environment harassment was actionable.. Then the majority deviated from Oncale and held that a victim of same-sex harassment could only have protection under Title VII if that victim showed either (a) the “harasser was motivated by sexual desire,” or (b) “the harasser [was] motivated by general hostility to the presence of [men] in the workplace,” or (c) “direct comparative evidence” as to different treatment to members of the other sex. Since “Rene did nothing to show the district court that the harassment was based on his gender,” and Rene admitted all the conduct was “directed at [him] because of his sexual orientation,” he had no viable claim under Title VII.

The dissenting Judge, Dorothy Nelson, compared this case to the Oncale case, and noted that the facts were essential identical. The only difference, noted Judge Nelson, was that Oncale never admitted to being openly gay; all the other facts were essentially the same. Nelson noted that the subjective belief of the victim as to the motive of the harassers does not defeat a Title VII claim, and that belief, in fact, is immaterial. The only subjective component in sexual harassment involves whether a person feels his or her workplace as subjectively hostile or abusive.

J. Nelson noted that the act of harassment itself, in male-female harassment, permits an automatic inference of discrimination. She noted there was no logical basis for assuming otherwise in male-male harassment, especially when the actions involve sexual assaults directed at only one gender. J. Nelson rejected the majority's reading of Oncale as allowing only three methods for proving actionable same sex harassment, noting those methods were only samples offered by the Supreme Court. She found that so long as the harassers intended to humiliate Rene as a man, it did not matter what their motives were, whether the motives were rage, sexual pleasure, affirmation of heterosexuality, or a myriad of factors. “Enforcing Title VII in the mixed-gender context does not involve determining which pleasure center in the attackers' brains was stimulated by the attacks, nor should it be in this case.”

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).

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.

Some argue that so long as male and female employees both suffer “harassment” or discrimination at the hands of an “equal opportunity harasser,” the discrimination is not actionable because both genders are treated the same. Under this argument, a bisexual supervisor who sexually harasses both male and female employees, asking for sexual favors from both groups, is immunized from liability.

All plaintiff attorneys should tell their respective judges that the “equal opportunity harasser” doctrine is both illogical and unreliable. The use of gender stereotypes is always a violation of both Title VII and California's Fair Employment & Housing Act. “Congress' intent” in enacting Title VII was “to forbid employers to take gender into account in making employment decisions[.]” Price Waterhouse at 239. Sections 2000e-2(a)(1) and (2) “mean that gender must be irrelevant to employment decisions.” Id. at 240.

Therefore, when an employer advertised sex-segregated advertisements, based on sex stereotypes of the jobs applicable to males and females, that employer engaged in discrimination against both men and women on the basis of sex. Ruhe v. Philadelphia Enquirer, 14 Fair Empl. Prac. Case. (BNA) 1304, 1305 (D.C. Pts. Auths, 12:. 1975). The same principle applies when an employer uses outdated notions that only males should have promotions from trainees to dock workers, and women should accept only promotions from trainees to secretarial positions. Although both males and females are denied promotional opportunities, based on outdated notions of sexual stereotyping, both groups are disadvantaged on the basis of gender.

When an employer acts adversely against two employees because they are involved in an inter-racial relationship, that employer has discriminated against both persons on the basis of their respective races. Parr v. Woodmen of the Word Life Ins.., 791 F.2d 888, 892 (11th Cir. 1986). It is no excuse that the employer discriminated against both equally harshly. See also Watson v. Nationwide Insurance Co., 823 F.2d 360, 361-2 (9th Cir. 1987).

In a similar case involving lay offs, the employer who assumes that male managers should not be offered the customer support positions given to women, and that women should not be offered dock worker positions reserved for men, discriminates against both groups in carrying out the lay offs. Both groups are disadvantaged by the stereotypical discrimination, but such discrimination is still impermissible.

Racially segregating all employees at work constitutes race discrimination against all employees, even though all employees are subjected to the segregation. Firefighters Institute for Racial Equality v. City of St. Louis, 549 F.2d 506, 514 (8th Cir.); Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972).

Using racial epithets against each of three different groups in the work place means that the employer has discriminated against all three ethnic groups, not that the employer is immunized from racial harassment. Harassment is judged from the context of the reasonable person sitting in the shoes of the victim employee, and harassment is not judged from the context of the mental intent of the verbal harasser. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).

In Kovatch, the manager expressed both stereotyped views of correct male behavior (i.e., anti-homosexual sentiment) towards the male plaintiff, Kovatch, as well as stereotyped views of the female employees whose function was to have sex with the manager and have abortions from that sex when necessary. Both men and women experienced hostility from the Manager, Aldinger, based on his discriminatory views of both genders.

The reason that the “equal opportunity harasser” doctrine does not have a place in civil rights law is that the harasser is guilty of sexual, racial, ethnic stereotyping that forms the basis of that conduct. It is the stereotyping, the placing of all persons identified with a particular group into the stereotypes about that group, that the civil rights laws seek to unlink. The basic premise of civil rights statutes is to force decision makers to view the employee as an individual, based on individual characteristics and abilities, rather than as simply a member of some group which the employer views in an unpopular manner.

Prosecution of sexual orientation and sexual identity claims is available in California under Title VII, as well as the Fair Employment & Housing Act. Attorneys who handle such cases 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 is often the “ticket to safety” for defense attorneys in having claims dismissed.