Friday, July 1, 2016

Christiansen v. Omnicom, pt 2: Is discrimination against a gay man for being too masculine sex discrimination?

A few months ago, I wrote a long post about the district court decision in Christiansen v. Omnicom Group, Inc., addressing the coverage of sexual orientation discrimination under Title VII's sex discrimination prohibition. That case is now on appeal to the Second Circuit, and briefs have just been filed by Matthew Christiansen and by various amici supporting him. Consistent with prior filings, the briefs rely heavily on the argument that sexual orientation discrimination is a form of sex discrimination rooted in sex stereotypes.

At bottom, I agree that sex stereotypes can be used to establish that sexual orientation discrimination violates Title VII, though apparently not for the same reasons that others might believe that to be the case. As discussed in this post, some advocates' analysis of the sex stereotyping issue is wide of the mark, misconstruing the relationship between sex stereotyping and Title VII's underlying prohibition against sex discrimination.

A prime example is the amici brief filed by 128 members of Congress. The congressional amici contend that Christiansen was subjected to unlawful sex stereotyping based on his status as a masculine gay man. Looked at another way, the amici essentially contend that Christiansen was treated badly not for being gay but instead for not being gay enough. Describing the predicament of the masculine gay man, the amici explain:
The discrimination employees like Christiansen experience sends a clear message: a masculine gay man violates traditional expectations for how both gay and heterosexual men should appear and behave. Only heterosexual men should present as masculine, and only gay men should present as feminine; any deviation on either a heterosexual or gay man's part is, in the eyes of Christiansen's coworkers, a punishable transgression from traditional gender stereotypes.
According to the amici, Title VII prohibits discrimination either because an employee acts in a manner inconsistent with sex stereotypes, e.g., a feminine man, or because an employee acts in a manner consistent with sex stereotypes, e.g., an overly feminine woman. Thus, the thinking of the amici appears to be that, just as it is unlawful to discriminate against a feminine heterosexual man for not conforming to male stereotypes, it is unlawful to discriminate against a masculine gay man for conforming to male stereotypes.

As support for this too feminine/too masculine theory, the amici cite Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), and Back v. Hastings on Hudson School District, 365 F.3d 107 (2d Cir. 2004). In Phillips, the plaintiff challenged an employer policy against hiring women with pre-school age children. The amici characterize Phillips as standing for the proposition that Title VII prohibits discrimination against women for being too feminine, which in this context apparently means having young children. To my mind, this interpretation of Phillips is nonsensical. Phillips merely held that women with young children cannot be treated worse than men with young children. Analytically, this is no different from saying that women who engage in misconduct cannot be treated worse than men who engage in misconduct. Indeed, Phillips even endorsed potential discrimination against women based on sex stereotypes, stating that if there were sufficient evidence that women as a whole had conflicting family obligations, then that might be a basis for concluding that an employer could discriminate against all women, regardless of their particular individual circumstances.

Like Phillips, Back involves discrimination against an individual because she is female and has young children. The main difference is the kind of evidence that was used to show that the employer treated women worse than men. In Phillips, sex discrimination was established through evidence of a policy that treated women differently than men. In Back, sex-based statements showed that the plaintiff was treated adversely because of sex stereotypes about women with young children that did not apply to men with young children.

The amici therefore misread the case law, suggesting that there is coverage of discrimination based on masculinity or femininity in and of itself, unmoored from the statutory prohibition against "sex" discrimination. Let's consider what that would mean if it were actually true.

In Price Waterhouse, the reason that Ann Hopkins was protected against discrimination for being perceived as too aggressive was because the employer did not discriminate against aggressive men. Had the employer treated all aggressive employees alike, then Hopkins could not have claimed sex discrimination. In the same vein, discrimination against a woman for being too feminine is not sex discrimination unless feminine men are treated better. As the amici would have it, since aggressiveness is a sex stereotype, discrimination based on aggressiveness, standing alone, is protected under Title VII, regardless of whether the person victimized is male or female and regardless of whether that person is perceived as too aggressive or not aggressiveness enough.

Amici's argument that masculine gay men are protected by Title VII is all the more peculiar when you consider the facts in Christiansen's case -- e.g., resentment based on sexual orientation, hyper-sexualized images of Christiansen, an image of plaintiff's face on the body of a woman, suggestions that Christiansen had AIDS. This abusive conduct reflects straightforward sexual orientation discrimination against gay men in general, not narrower discrimination against the subclass of masculine gay men.

In only comparing the treatment of gay men to the treatment of heterosexual men, the congressional amici overlook a more appropriate comparison that might be used to establish sex discrimination in the treatment of masculine gay men. As shown, sex discrimination only arises if there are differences between the treatment of men and women, not merely intra-sex differences between the treatment of two sub-classes of the same sex. Instead of amici's intra-sex comparison between gay men and heterosexual men, the amici could have compared gay men to lesbians. If homosexual women are permitted to be masculine, but homosexual men are not, then that appears to be discrimination based on sex. Still, this comparison can only establish coverage for masculine men who are gay, and excludes masculine heterosexual men since the latter cannot establish that they are treated worse than heterosexual women, which is the sub-class of women similarly situated to heterosexual men.

So there may be an argument that discrimination against a masculine gay man (or feminine lesbian) is covered under Title VII, but it's not the one advanced by the congressional amici, and there's also no need to even reach that issue.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.