Secunda on Sex Stereotyping Claims by Gay Employees

The Wall Street Journal’s Law Blog was recently perplexed by a case in which the Third Circuit reinstated a sex stereotyping claim by a gay male employee. The court, noting that sexual orientation isn’t protected by Title VII, noted that an effeminate gay man can pursue a stereotyping claim just like an effeminate straight man. To clear up their confusion, the WSJ turned to our own Paul Secunda:

We found ourselves a bit puzzled by this distinction, which, on first blush, strikes us as a bit arbitrary: If a gay man is fired because he’s acting in conformity with the stereotype of a gay man, he can sue under Title VII. At the same time, if he’s fired because he’s gay, he can’t sue. That struck us as odd.

So we checked in with Paul Secunda, an employment-law expert and law professor at Marquette, for a bit more clarification.

Secunda confirmed the fact that, yes, this was the law, largely dating to a U.S. Supreme Court case from 1989 called Price Waterhouse v. Hopkins, in which a woman was not made a partner at Price Waterhouse because her demeanor did not conform to stereotypical notions of femininity. “That’s called sex-stereotype discrimination,” says Secunda, “when an employer says to someone ‘you’re not acting ‘female enough’ or ‘male enough,’ therefore we’re firing you.” . .

Read more at: Workplace Prof Blog!