Sex stereotyping, sexual orientation discrimination, and federal law - crazy-mixed-up right now

The Employment Non-Discrimination Act is dead again. Is there any federal law on same-sex harassment or discrimination? If so, what is it? Here are some scenarios that may be helpful in picking through this crazy extremely complex and rapidly transitioning area of the law. (Answers are provided after Scenario 6, below.)

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Scenario 1. Joe has a huge crush on John. Joe makes lewd and unwelcome comments to John, and tries to corner him to make sexual advances to him. John has made it clear to Joe that he is not interested, but Joe doesn't listen.

Under federal law, is there a problem?
pollcode.com free polls 

Scenario 2. Bill interviews Lester for a job. Lester is huge, hairy, and masculine looking. When Bill offers him a job, Lester says he is thrilled but will have to discuss it that evening with his "better half," Jim. Bill immediately withdraws the offer and hires a less-qualified heterosexual man.

Has Bill violated federal law?
pollcode.com free polls 

 

Bluto
Lester on his way home to tell Jim about his new job . . . just before Bill withdraws the offer.

 

Scenario 3. Bill interviews Charlie for a job. Charlie is married (to a woman) and has four kids. However, he's "thin and neat," and he speaks with a sibilant "s." Bill thinks Charlie will catch too much grief from Bill's "rough" work crew, so he hires a less qualified guy who he thinks is more "manly."

Has Bill violated federal law?
pollcode.com free polls 

 

Thin, single, and neat - Jerry Seinfeld in 1992.
Thin, single, and neat - Jerry Seinfeld in 1992.

 

Scenario 4. Mary has short hair, doesn't wear makeup or nail polish, and she wears "men's" pants and flat shoes. The women she works with gossip about her behind her back and play mean jokes on her. The female supervisor sees all of this and thinks it's funny and harmless.

Might the company be liable under federal law?
pollcode.com free polls 

 

Scenario 5. Anne has long, lustrous, beautiful hair, and is perfectly dressed and made up every day, right down to her shell-pink ruffledy chiffon dress and her seven-inch stiletto heels. One day, Anne tells her boss that she and her partner are planning to adopt a baby. While the boss is ecstatically planning Anne's baby shower, Anne mentions that her partner's name is Marie. The boss starts writing Anne up for performance issues (all bogus), and eventually fires her.

Might the company be liable under federal law?
pollcode.com free polls 

 

Scenario 6. Marsha (formerly Marshall) is a biological male who is going through the gender-reassignment process. Marsha has not had surgery yet, but she's started hormone treatments and, on the advice of her physician, has begun dressing and living as a woman. Marsha's supervisor, Staci, fires Marsha for coming to work five minutes late -- once -- when there was a horrendous accident on the interstate that made everyone else late, too. (No one else is even written up.)

Has Staci put her company in jeopardy under federal law?
pollcode.com free polls 

 

Traffic Jam.1328642571-traffic-jam-problem-worsen-ever-day--larkana_1040167
The day that Marsha was running a few minutes late.

 

The answers, with no ENDA, and assuming none of these employers are federal contractors, are 1-D, 2-A, 3-D, 4-C, 5-B, and 6-C.

Huh? Seriously?

Crazy Extremely complex and rapidly transitioning, I know! Title VII prohibits discrimination based on sex but not sexual orientation. However, Title VII does prohibit discrimination based on sex stereotyping. (Why? Because the Supreme Court said so, that's why.) So if the discrimination or harassment has something to do with stereotyping -- in other words, the individual is being picked on because he doesn't fit the picture of what a "man" should be, or she doesn't fit the picture of what a "woman" should be, the individual could have a valid federal claim. As in this case.) On the other hand, if the individual is picked on "only" because he or she is perceived as being gay, then there is no valid federal claim.

Of course, many states and local governments have their own laws prohibiting discrimination and harassment based on sexual orientation. In addition, in any state, a person who is harassed because of sexual orientation may (depending on the circumstances) have common-law tort claims for intentional or negligent infliction of emotional distress, assault and battery, or false imprisonment, and one who is fired or "forced" to quit could have a claim for wrongful discharge.  So employers should not think that the lack of a federal law means they can act with impunity.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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