Sunday, November 20, 2016

The Bisexual Wage and Coverage Gaps

As I discussed in a recent post, courts have been increasingly willing to conclude that the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964 encompasses sexual orientation discrimination. Although I agree that discrimination based on homosexuality or heterosexuality arguably constitutes sex discrimination, I don't believe the same can be said for discrimination against bisexuals. 

For example, discrimination against a gay man can be seen as sex discrimination that is grounded in a stereotype that applies to men but not to women, namely that they should not have sex with men. If someone discriminates, however, against a bisexual man or a bisexual woman because each has sex with both men and women, then men and women are being treated the same, so there is no sex discrimination. Thus, even where courts have concluded that Title VII prohibits sexual orientation discrimination, there is a bisexual coverage gap.

Based merely on common sense, I have always assumed that discrimination against bisexuals is exceedingly rare or even non-existent. I can see an employer discriminating against bisexuals as well as gay men and lesbians, but I think it much less likely that an employer would treat homosexual and heterosexual individuals the same yet discriminate against bisexual individuals.

I was surprised, then, to see that a recent study has concluded that bisexual men and women may be subject to pay discrimination that is not faced by gay men and lesbians. The study was authored by Trenton D. Mize, a doctoral student, and published by the American Sociological Association. 

Only time will tell whether discrimination against bisexuals arises with any frequency, but absent new federal legislation, which seems exceedingly unlikely for the foreseeable future, it does not appear that such discrimination is prohibited under federal law.

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.