Why anti-gay discrimination is illegal, in one short footnote

Interracial relationships offer a surprisingly compelling juxtaposition.

CREDIT: istockphoto/ UberImages
CREDIT: istockphoto/ UberImages

On Friday, a federal judge in Pennsylvania ruled that a case alleging anti-gay discrimination in the workplace could proceed on the basis that such maltreatment violated Title VII’s protections on the basis of “sex” discrimination. Though U.S. District Judge Cathy Bissoon, an Obama appointee, accepted the arguments that such discrimination was based on sex stereotypes, she also noted a compelling juxtaposition with racial discrimination.

The Equal Employment Opportunity Commission (EEOC) brought the case against Scott Medical Health Center because of the actions of one particular employee, Robert McClendon. McClendon had allegedly subjected his subordinate employee Dale Baxley to anti-gay harassment, including calling him “fag,” “faggot,” “fucking faggot,” and “queer”; making comments like “fucking queer can’t do your job”; and upon learning Baxley had a male partner, making statements like, “I always wondered how you fags have sex,” “I don’t understand how you fucking fags have sex,” and “Who’s the butch and who is the bitch?” Hearing such comments multiple times a week, the EEOC argued, created a hostile work environment for Baxley.

McClendon is separately being sued for multiple charges of sexual harassment against female employees.

The argument EEOC has offered in multiple cases is that discriminating against someone based on their sexual orientation constitutes discrimination on the basis of sex stereotyping. In the 1989 case Price Waterhouse v. Hopkins, the Supreme Court found that requiring a female employee to make her appearance more feminine in order to advance was discrimination on the basis of her sex. In her decision, Bissoon agreed that “there is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.”

“Forcing an employee to fit into a gendered expectation — whether that expectation involves physical traits, clothing, mannerisms, or sexual attraction — constitutes sex stereotyping and, under Price Waterhouse, violates Title VII,” she wrote.

“That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.”

But in a footnote, Bissoon noted that she also found compelling another argument the EEOC advanced drawing a comparison to interracial relationships. The United States Court of Appeals for the Fifth Circuit reasoned in 2009, “This court has recognized that § 1981 and Title VII prohibit discrimination against an employee on the basis of a personal relationship between the employee and a person of a different race,” and several other appellate courts have arrived at similar conclusions.

In other words, if it’s discrimination on the basis of race to treat an employee differently because of the race of their partner, then it should be discrimination on the basis of sex to treat an employee differently because of the sex of their partner. “Only because the Court finds the sex stereotyping rationale sufficiently compelling and dispositive, does it not examine fully the ‘association’ line of cases and how they would apply here,” Bissoon wrote.

This juxtaposition mirrors a similar argument that has been proffered in other cases for how Title VII’s sex protections should also protect transgender employees using a comparison with religious conversion. If it would be discrimination on the basis of religion to treat an employee differently because they underwent a change in religious identity, then it should be discrimination on the basis of sex to treat an employee differently because they underwent a change in gender identity.

Bissoon’s ruling is not the final say in the case against Scott Medical Health Center nor does it establish any precedents, but it does provide a new lens for considering the many discrimination cases proceeding across the country.