Bias as to Perceived Sexual Orientation Has Real Consequences For Employers

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On Monday, June 15, 2020, the U.S. Supreme Court published a historic decision in Bostock v. Clayton County, Ga. A 6-3 majority held the prohibition against sex discrimination in employment in Title VII of the Civil Rights Act of 1964 (“Title VII”) includes discrimination based upon sexual orientation. For jurisdictions which had endorsed a contrary view, claims of sexual orientation discrimination under Title VII present new questions.

In many situations, for instance, the information available to an employer allows only a perception of the sexual orientation of an applicant or employee. This information can be appearance, physical mannerisms, speech and interactions with others. This information can also be a second-hand report or a rumor. Predictably, basing a perception on such incomplete information can lead to mistaken assumptions about a person’s sexual orientation.

So is it a defense to a claim of sex discrimination that an employer merely had a perception an applicant or employee was gay? Similarly, is it a defense to a sex bias claim that the employer was mistaken about the sexual orientation of an applicant or employee?

Some cases decided before Bostock had already answered these questions in the negative. In these cases, gender stereotyping was found to be a sufficient basis for a claim of sex discrimination.

Ellingsworth v. Hartford Fire Insurance Co.

In this case before the U.S. District Court for the Eastern District of Pennsylvania, a female plaintiff claimed she was constructively discharged by a former employer based on sex, in violation of Title VII. She claimed she was harassed with claims she was a lesbian even though she was heterosexual and married.

The former employer moved to dismiss the suit alleging it could not be held liable under Title VII because the employer’s perception of the plaintiff’s sexual preference (i.e. , that she is gay) was incorrect.

In a 2017 opinion denying the employer’s motion to dismiss, the court found the plaintiff stated a viable claim of gender stereotyping in violation of Title VII.  Indeed, the court opined:

“… it is perhaps worse (for defendant’s case) that [the employer] was mistaken in [its] assumption that [Plaintiff] is gay. The fact that [Plaintiff] is not gay simply reveals that [the employer] harbored such a strong prejudice and animus as to how women should look, dress and act, that [the employer] actually mischaracterized another person’s sexual orientation because of this prejudice. Clearly, [the employer’s] animus and pre-conceived stereotyping played a role in [its] treatment of [Plaintiff].”

Sanderson v.  Leg Apparel, LLC

In this case before the U.S. District Court for the Southern District of New York, a male employee sued his former employer claiming he was fired based upon the perception he is gay, in violation of Title VII.  The complaint never actually alleges the plaintiff is gay.

The former employer moved to dismiss arguing because the plaintiff did not allege he is not heterosexual, he could not bring a sex discrimination claim.

In a June 11, 2020 opinion denying the employer’s motion to dismiss, the court noted  perceived sexual orientation discrimination is a form of sex stereotyping.  The court elaborated:

“And more importantly, Defendants have not offered a reason to distinguish between actual and perceived sexual orientation [citation omitted]. The court sees no reasons for the distinction. So the mere fact that [Plaintiff] has not alleged that he is not heterosexual does not compel dismissal of his claims.”

Bronson v. Hanover Foods Corp.

In this case before the U.S. District Court for the Middle District of Pennsylvania, a male employee sued for sex discrimination alleging a hostile work environment and unlawful termination under Title VII. According to the plaintiff, his supervisors called him derogatory names such as “queer”, “fag” and “fairy” due to the way the plaintiff kept himself in comparison to other employees.

The employer moved for summary judgment.

In an April 1, 2020 decision, the court agreed the plaintiff did not state viable claims for discrimination under Title VII based on sexual orientation or perceived sexual orientation. The court still denied the employer’s motion holding a factfinder could conclude the plaintiff had been discriminated against because of his failure to adhere to the employer’s idea of gender stereotypes. In doing so, the court never reached the question of whether the plaintiff was actually gay or not.

Perception is Reality

Although claims based upon perceived membership in a class protected by Title VII have received inconsistent treatment in the courts, it thus appears, at least for the time being, available precedent favors the protection under the Act of perceived sexual orientation as well as actual sexual orientation. With gender stereotyping being a sufficient basis for a claim of sex discrimination under Title VII, perception can have very real consequences for employers.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com.

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