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social sciences

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Workplace Discrimination  
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Another theory of relief under Title VII lesbians and gay men have relied on is "sex stereotyping." This theory achieved its greatest fame in the Supreme Court case of Price Waterhouse v. Hopkins (1989). In Hopkins, a female employee sued after she was passed up for partnership. Partners at the firm criticized her for being "macho" and "overly aggressive." One partner told her she should "walk more femininely, talk more femininely, dress more femininely" to improve her chances at partnership, and another partner told her to "take a course in charm school." The Supreme Court, in an opinion by Justice Brennan, held that this kind of "sex stereotyping" is not allowed under Title VII.

In Rene, two of the concurring judges felt that the plaintiff could state a claim under Hopkins because his harassers treated him "like a woman," and therefore engaged in unlawful sex stereotyping.

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Most claims by lesbians and gay men under Hopkins have failed. One federal court, for example, recently threw out a sex stereotyping claim by a gay corrections officer because there was no evidence that the plaintiff acted "in an effeminate manner" (Martin v. New York Dep't of Corrections [2002]). Since not all gay men are effeminate and not all lesbians are "macho," the Hopkins case may have limited value to employees harassed because of their sexual orientation.

Title VII shows some renewed promise after Rene, but the patchwork of protections across the country can only be cured by the passage of ENDA. Until then, some lesbians and gay men will be legally protected from workplace discrimination, and others will not.

The lesbian and gay civil rights movement has come a long way from the time, not too long ago, when coming out at work was extremely risky and could likely lead to reprisal. Today many millions of Americans are out at work and protected from discrimination by company policy or by local law. Yet this impressive story of successful activism will not be complete until Congress protects all lesbians and gay men with the passage of ENDA.

Gregory A. Johnson

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Kay, Herma Hill, and Martha S. West. Sex-Based Discrimination. 5th ed. St. Paul, Minn.: West Group, 2002.

Leonard, Arthur S. "The Gay Rights Workplace Revolution." Human Rights 30 (2003): 14-16 and inside back cover.

_____. "New Mexico Legislative/Executive Trifecta: Simultaneous Measures on Discrimination, Hate Crimes, and Partner Benefits; State High Court Recognizes Consortium Claim." Lesbian and Gay Law Notes (2003): 64-65.

Kershaw, Sarah. "Wal-Mart Sets a New Policy That Protects Gay Workers." New York Times (July 2, 2003): A.1.

MacKinnon, Catharine A. Sex Equality. New York: Foundation Press, 2001.

Rubenstein, William B. Cases and Materials on Sexual Orientation and the Law. 2nd ed. St. Paul, Minn.: West Publishing, 1997. (For "The State of the Workplace for Lesbian, Gay, Bisexual and Transgender American 2002" and other resources). (For a summary of states and cities with anti-discrimination laws).


    Citation Information
    Author: Johnson, Gregory A.  
    Entry Title: Workplace Discrimination  
    General Editor: Claude J. Summers  
    Publication Name: glbtq: An Encyclopedia of Gay, Lesbian, Bisexual,
Transgender, and Queer Culture
    Publication Date: 2004  
    Date Last Updated December 23, 2006  
    Web Address  
    Publisher glbtq, Inc.
1130 West Adams
Chicago, IL   60607
    Today's Date  
    Encyclopedia Copyright: © 2002-2006, glbtq, Inc.  
    Entry Copyright © 2004, glbtq, inc.  


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