After almost 30 years in the public defender office, I left the agency and stepped into a new kind of trial in family law. It was an incredible experience. I learned two important lessons. One which I expressed to the trial judge in chambers about half way through trial was I wondered aloud if the rules of evidence applied during a family law trial. Interestingly, the three very seasoned female family law practitioners spontaneously responded aloud with, "No not really..." while the experienced trial judge put his hands behind his head and responded, "Well yes, they are supposed to apply...." The other lesson I learned is that female family law practitioners are far tougher than their male counterparts hands down.
With that in mind I ask you to imagine a big law firm with a female associate bucking to make partner. She has the best record at generating new business and securing multimillion-dollar contracts for the firm. Yet her nomination is put on hold after she was evaluated by several male partners as being too "macho" and in need of a "charm school." One of told her to "walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry." Instead of doing that, the female associate quits the firm and filed a lawsuit under Title VII of the Civil Rights Act of 1964, which forbids employment discrimination because of a person's sex. Should she win even if she quit the firm?
In a 6-to-3 ruling the U.S. Supreme Court held that a firm basing its decision in part on unlawful sexual stereotyping is discrimination. Wrote Justice William Brennan in the lead opinion: "An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they don't." Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) The firm must establish that it would have rejected Hopkins' partnership bid based on purely nondiscriminatory factors. "At this point," noted Justice Sandra Day O'Connor, "the employer may be required to convince the fact finder that, despite the smoke, there is no fire." The court's decision to shift the burden to the employer should make it easier for many employees to win Title VII cases, which also bar job discrimination on the basis of race, religion and national origin.
Now let's run that analysis if that associate was male instead of female. And the male was gay. In other words, does sexual discrimination under Title VII of the Civil Rights Act of 1964 include sexual orientation discrimination?
Perhaps under a July 2015 federal agency decision entitled Baldwin v. Department of Transportation, Appeal No. 0120133080 (July 15, 2015). In Baldwin, a gay male alleged that his supervisor, who was involved in the selection process for a permanent position, made several negative comments about Complainant’s sexual orientation. For example, Complainant stated that when he mentioned that he and his partner had attended Mardi Gras in New Orleans, the supervisor said, “We don’t need to hear about that gay stuff.” He also alleged that the supervisor told him on a number of occasions that he was “a distraction in the radar room” when his participation in conversations included mention of his male partner. The U.S. Equal Employment Opportunity Commission held that sexual orientation discrimination is, by its very nature, discrimination because of sex.
The Baldwin decision explains that allegations of sexual orientation discrimination necessarily involve sex-based considerations. First, discrimination on the basis of sexual orientation necessarily involves treating an employee differently because of his or her sex. For example, a lesbian employee disciplined for displaying a picture of her female spouse can allege that an employer took a different action against her based on her sex where the employer did not discipline a male employee for displaying a picture of his female spouse. Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that the employer took the employee's sex into account by treating him or her differently for associating with a person of the same sex. Finally, discrimination on the basis of sexual orientation is sex discrimination because it necessarily involves discrimination based on gender stereotypes, including employer beliefs about the person to whom the employee should be attracted.