As we noted in yesterday’s post, federal anti-discrimination laws do not prohibit an employer from discriminating on the basis of an employee’s sexual orientation – while New York State and City law do. Despite Congress’s failure to enact such legislation, creative plaintiff’s attorneys have been advancing “sex stereotype” discrimination as an offshoot of gender discrimination that provides some protection against discrimination for gay and lesbian employees. In a nutshell, this theory is based on the argument that discrimination against employees that fail to conform to certain gender stereotypes or fail to fit the employer’s mold of how a man or woman should act is gender discrimination. For example, treating a gay employee differently because he isn’t “masculine enough” or referring to him as “girl” or “bitch” could constitute sex stereotype discrimination. The same holds true for lesbian employees who are subjected to discrimination or comments because they don’t wear make-up or dresses.
While it is encouraging that the courts are expanding the definition of gender discrimination to provide some protection to gay and lesbian employees and the EEOC has included sex stereotyping within its definition of gender discrimination, all of this would not be necessary if Congress would simply pass legislation prohibiting discrimination in the workplace based on an employee’s sexual orientation. While such a bill has repeatedly been introduced in Congress, it has not generated enough support to pass.