Chapter 9: Affinity Orientation Discrimination
Chapter 9
Affinity Orientation Discrimination
Chapter Objectives:
In this chapter the primary objectives are have the students understand what the law allows regarding workplace discrimination against gays, lesbians, transgenders, and those with bi-gender affinity orientation. It will also be important to teach the students, when necessary, to differentiate between their own personal feelings about the issue and the role they must take as a manager, supervisor or business owner who must uphold the law. Ultimately, the student should learn the importance of judging employees based on relevant work-related criteria. After finishing the chapter the student should know what laws apply in this area, which do not, what applicable laws require, and how to avoid liability for discrimination in this increasingly important emerging area.
Scenarios - Points for Discussion
Scenario 1: A third year female law student is given an offer to come to work for a law firm after graduation. She accepts the offer. Later the lawyers at the law firm find out that the law student is planning on engaging in a symbolic ceremony of commitment with another female. The ceremony is private and does not have the legal effect of marriage. The law firm takes back its "offer" (actually now a contract) after it discovers the law student is a lesbian. The law student sues for employment discrimination. Does she win? Why or why not?
The law student will probably lose. There is no state law protecting gays and lesbians from job discrimination in Georgia. In the absence of such legislation, employees generally lose. This scenario is loosely based on Shahar v. Bowers, 836 F. Supp. 859 (N.D. Ga. 1993), in which the employer was the state attorney general and the court granted the state's motion for summary judgment based in large part upon the unique role of the attorney general and his staff.
Scenario 2: A male airline pilot is terminated after he puts in a request for medical leave, in accordance with company policy, in order to have sexual reassignment surgery to change him anatomically from male to female. Is this illegal discrimination? Why/why not?
No, this is not illegal discrimination. The courts have routinely held that in such situations, the employee is not being discriminated against based upon the fact that he is a female or male, but rather, because the employee changed genders. Transsexuals are not protected from discrimination under Title VII. Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984), cert. den. 105 S.Ct. 2023 (1985); Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982); Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977); Powell v. Read's Inc., 436 F. Supp. 369 (D. Md. 1977).
Scenario 3: Sylvio’s immediate supervisor, Leroy, has been giving Sylvio sexually suggestive looks and making sexually suggestive comments. Sylvio is feeling extremely uncomfortable about it and fears for his job. Sylvio thinks that because both he and Leroy are males, there can be no sexual harassment. Is Sylvio correct?
The courts are presently split on this issue. Some have permitted a cause of action under Title VII for sexual harassment when both parties are of the same gender. Some have not. The trend is to permit such actions under Title VII.
Out of the Closet
1. Title VII's prohibition on discrimination on the basis of gender does not protect employees against discrimination on the basis of affinity orientation, including gays, lesbians, transsexuals, those with bi-gender affinity orientation or any others in this area.
2. Twelve states (WI, CA, MA, HW, CN, NJ, MD, MN, NH, VT, NV and RI), and over 125 municipalities have passed laws providing protection for gay and lesbian employees. In addition, for government employees, state and federal constitutions may provide protection. See Exhibit 9-5 for a partial list of municipalities with protective legislation.
3. Issues such as AIDS funding and research, the gays in the military and the 1992 presidential election in which President Bill Clinton voiced support for gays and later appointed the first open lesbian to a high-level government position (making her the first open gay ever confirmed by the US Senate for political office - See Exhibit 9-2), put the issue of gays and lesbians on the national agenda for the first time.
4. The military ban on gays made headlines across the nation for the first half of 1993. On April 25, 1993, the Cable News Network (CNN) broadcast day-long national television coverage of the convergence of nearly a million people, gay, bi, transgender and straight, on Washington, DC for the 1993 March on Washington for Lesbian, Gay and Bi Equal Rights and Liberation. While the exact numbers were disputed, it was clear that it was one of the largest marches ever held, and that gays and lesbians could no longer be ignored.
5. Since earning a living is a necessity for most people, this issue is bound to surface in the workplace and become one an employer must increasingly confront.
6. There is an increasing realization that gays and lesbians are everywhere and should be judged for who they are as people, not for the personal matter of their sexuality. See Exhibit 9-1 on myths.
7. With the rules changing almost daily, and more state and local legislation both for and against civil rights for gays, it has become imperative for employers to know what their potential legal liability is in this area.
8. Recently companies have begun to be sensitive to the needs of gay and lesbian employees, including such companies as Apple, Digital Equipment, Disney, AT&T (See Exhibit 9-3 on the AT&T brochure), Boeing, Coors, Du Pont, Hewlett-Packard, Lockheed, Sun Microsystems, Pacific Gas and Electric Co. IBU, Kodak, UPS, J.P. Morgan, Merrill Lynch and USWest, to name a few. The groups tackle such issues as workplace hostility, extending employee benefits to domestic partners, making sure that partners are welcome at company social functions, and generally making the workplace more hospitable for gays and lesbians.
9. Many companies which provide multicultural training for their employees, and consultants who perform this service, include affinity orientation as another area of diversity which should be recognized and valued, just as race, ethnicity or disability.
10. Based upon the potential for increased productivity and the possibility of litigation, some employers conclude that the better, safer, and more enlightened practice is to base workplace decisions solely upon an employee's ability to effectively perform the job rather than upon their choice regarding personal relationships.
11. If the employee's activities interfere with the workplace, it may be the basis for a legitimate adverse employment decision which may be justified if the employee later protests.
12. In June of 1993 the city of Atlanta, GA joined cities like Ithaca, New York, Madison, Wisconsin and West Hollywood, California in providing for the registration of unmarried couples (gay or straight) as domestic partners.
13. Domestic partnership registration permits those who are unmarried (gay or straight) but living as a family to take advantage of available benefits such inclusion on health insurance policies.
14. Public employees adversely affected by an employment decision based upon affinity orientation may, under appropriate circumstances, use state constitutions or the First, Fifth or Fourteenth amendment of the U.S. Constitution as a basis for suit, as well as the Constitutional right to privacy.
15. Gay and lesbian employees may also bring tort actions such as intentional infliction of emotional distress, intentional interference with contractual relations, invasion of privacy, or defamation.
16. Employers should also be aware of the possibility of several closely-related matters which may arise in affinity orientation cases and cause liability based upon the protected category of gender, for instance, stereotyping as discussed in the gender chapter.
17. If an employer allows lesbians to work and not gay men, this could be the basis for gender discrimination.
Case Example:
Romer v. Evans, 116 S. Ct. 1620 (1996)
Issue: This is the Colorado Amendment 2 case. The issue before the Court was whether a state can amend its constitution to include provisions prohibiting all legislative, executive or judicial action designed to provide any protection from discrimination against gays and lesbians.
Facts: Several Colorado cities had ordinances providing protection from discrimination for gays and lesbians. Through a referendum, Colorado citizens voted to amend their constitution to prohibit such protection. The amendment provided in part that “Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practice or relationship shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination...”
Decision: No. It is a denial of equal protection for a state to exclude from the protection of its laws a group of targeted citizens. Amendment 2 bears no rational relationship to a legitimate government purpose, which is what a law attempting to treat one group less favorably must do in order to withstand judicial scrutiny. The primary rationale of the state is respect for other citizens’ freedom of association, and in particular liberties of landlords and employers who have personal or religious objections to homosexuality. The “breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause.”
Case Questions
1. What do you think of the “special rights” argument? Does it make sense to you? Explain.
Student response.
2. What would you do as an employer who didn’t want to hire gays and lesbians in your work place, given this case?
Student response.
3. Now that you’ve seen how the U.S. Supreme Court stands on the issue in Romer, what would you do when establishing policies on gays and lesbians in your workplace?
Affinity Orientation as a Basis for Adverse Employment Decisions
1. There are several basis upon which an employer may be concerned about gays and lesbians in the workplace, including that the employee:
* is gay or lesbian (i.e., status or orientation)
* exhibits inappropriate workplace behavior such as detailed discussions of intimate sexual behavior or improperly propositioning others in the workplace
* wears clothing, jewelry, or make-up in violation of reasonable workplace grooming codes.
* undergoes gender reassignment surgery
* is in the pre-surgery adjustment stages of such surgery
* is living as a member of the opposite gender
* has primary relationships with those of the same gender
2. An employer should not tolerate from any employee inappropriate workplace behavior such as improperly propositioning other employees. This should not be addressed only when it is done by gay or lesbian employees. There should also not be a presumption that gays or lesbians will be more likely to engage in this type of behavior.
3. A distinction should also be made between status or orientation as a gay or lesbian on the one hand, and on the other, activity which may be inappropriate, even though the law may not protect either in a particular jurisdiction.
Case Example:
DeSantis v. Pacific Telephone & Telegraph Co., Inc., Strailey v. Happy Times Nursery School, Inc., Lundin & Buckley v. Pacific Tel. & Tel., Co., Inc., 608 F.2d 327 (9th Cir. 1979)
Issue: Whether Title VII protects gays and lesbians from employment discrimination on the basis of affinity orientation.
Facts: Gays and lesbians brought these actions claiming their employers and former employers discriminated against them in employment decisions because they were gay and lesbian. In one case a male employee of a day care center was terminated for wearing an earring, in another two lesbians involved in a personal relationship were terminated, and in another a male employee was harassed and terminated for being gay.
Decision: No. Title VII does not protect gay and lesbian employees from employment discrimination. Congress has not shown any intent other than to restrict the term gender to its traditional meaning. Therefore, this court will not expand Title VII's application in the absence of Congressional mandate. The manifest purpose of Title VII's prohibition against gender discrimination in employment is to ensure that men and women are treated equally, absent a bona fide relationship between the qualifications for the job and the person's gender. Based on similar readings of the legislative history and the principle that "words used in statutes are to be given their ordinary meaning," the EEOC has concluded "that when Congress used the word 'sex' in Title VII, it was referring to a person's gender and not to sexual practices."