Ch09 Affinity Orientation Discrimination.docx

Affinity Orientation Discrimination Chapter Objectives: In this chapter the primary objectives are have the students understand what the law allows regarding workplace discrimination against gays, lesbians, transgenders, and those with bi-gender affinity orientation. It will also be important to teach the students, when necessary, to differentiate between their own personal feelings about the issue and the role they must take as a manager, supervisor or business owner who must uphold the law. Ultimately, the student should learn the importance of judging employees based on relevant work-related criteria. After finishing the chapter the student should know what laws apply in this area, which do not, what applicable laws require, and how to avoid liability for discrimination in this increasingly important emerging area. Scenarios - Points for Discussion Scenario 1: A third year female law student is given an offer to come to work for a law firm after graduation. She accepts the offer. Later the lawyers at the law firm find out that the law student is planning on engaging in a symbolic ceremony of commitment with another female. The ceremony is private and does not have the legal effect of marriage. The law firm takes back its "offer" (actually now a contract) after it discovers the law student is a lesbian. The law student sues for employment discrimination. Does she win? Why or why not? The law student will probably lose. There is no state law protecting gays and lesbians from job discrimination in Georgia. In the absence of such legislation, employees generally lose. This scenario is loosely based on Shahar v. Bowers, 836 F. Supp. 859 (N.D. Ga. 1993), in which the employer was the state attorney general and the court granted the state's motion for summary judgment based in large part upon the unique role of the attorney general and his staff. Scenario 2: A male airline pilot is terminated after he puts in a request for medical leave, in accordance with company policy, in order to have sexual reassignment surgery to change him anatomically from male to female. Is this illegal discrimination? Why/why not? No, this is not illegal discrimination. The courts have routinely held that in such situations, the employee is not being discriminated against based upon the fact that he is a female or male, but rather, because the employee changed genders. Transsexuals are not protected from discrimination under Title VII. Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984), cert. den. 105 S.Ct. 2023 (1985); Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982); Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977); Powell v. Read's Inc., 436 F. Supp. 369 (D. Md. 1977). Scenario 3: Sylvio’s immediate supervisor, Leroy, has been giving Sylvio sexually suggestive looks and making sexually suggestive comments. Sylvio is feeling extremely uncomfortable about it and fears for his job. Sylvio thinks that because both he and Leroy are males, there can be no sexual harassment. Is Sylvio correct? The courts are presently split on this issue. Some have permitted a cause of action under Title VII for sexual harassment when both parties are of the same gender. Some have not. The trend is to permit such actions under Title VII. Out of the Closet 1. Title VII's prohibition on discrimination on the basis of gender does not protect employees against discrimination on the basis of affinity orientation, including gays, lesbians, transsexuals, those with bi-gender affinity orientation or any others in this area. 2. Twelve states (WI, CA, MA, HW, CN, NJ, MD, MN, NH, VT, NV and RI), and over 125 municipalities have passed laws providing protection for gay and lesbian employees. In addition, for government employees, state and federal constitutions may provide protection. See Exhibit 9-5 for a partial list of municipalities with protective legislation. 3. Issues such as AIDS funding and research, the gays in the military and the 1992 presidential election in which President Bill Clinton voiced support for gays and later appointed the first open lesbian to a high-level government position (making her the first open gay ever confirmed by the US Senate for political office - See Exhibit 9-2), put the issue of gays and lesbians on the national agenda for the first time. 4. The military ban on gays made headlines across the nation for the first half of 1993. On April 25, 1993, the Cable News Network (CNN) broadcast day-long national television coverage of the convergence of nearly a million people, gay, bi, transgender and straight, on Washington, DC for the 1993 March on Washington for Lesbian, Gay and Bi Equal Rights and Liberation. While the exact numbers were disputed, it was clear that it was one of the largest marches ever held, and that gays and lesbians could no longer be ignored. 5. Since earning a living is a necessity for most people, this issue is bound to surface in the workplace and become one an employer must increasingly confront. 6. There is an increasing realization that gays and lesbians are everywhere and should be judged for who they are as people, not for the personal matter of their sexuality. See Exhibit 9-1 on myths. 7. With the rules changing almost daily, and more state and local legislation both for and against civil rights for gays, it has become imperative for employers to know what their potential legal liability is in this area. 8. Recently companies have begun to be sensitive to the needs of gay and lesbian employees, including such companies as Apple, Digital Equipment, Disney, AT&T (See Exhibit 9-3 on the AT&T brochure), Boeing, Coors, Du Pont, Hewlett-Packard, Lockheed, Sun Microsystems, Pacific Gas and Electric Co. IBU, Kodak, UPS, J.P. Morgan, Merrill Lynch and USWest, to name a few. The groups tackle such issues as workplace hostility, extending employee benefits to domestic partners, making sure that partners are welcome at company social functions, and generally making the workplace more hospitable for gays and lesbians. 9. Many companies which provide multicultural training for their employees, and consultants who perform this service, include affinity orientation as another area of diversity which should be recognized and valued, just as race, ethnicity or disability. 10. Based upon the potential for increased productivity and the possibility of litigation, some employers conclude that the better, safer, and more enlightened practice is to base workplace decisions solely upon an employee's ability to effectively perform the job rather than upon their choice regarding personal relationships. 11. If the employee's activities interfere with the workplace, it may be the basis for a legitimate adverse employment decision which may be justified if the employee later protests. 12. In June of 1993 the city of Atlanta, GA joined cities like Ithaca, New York, Madison, Wisconsin and West Hollywood, California in providing for the registration of unmarried couples (gay or straight) as domestic partners. 13. Domestic partnership registration permits those who are unmarried (gay or straight) but living as a family to take advantage of available benefits such inclusion on health insurance policies. 14. Public employees adversely affected by an employment decision based upon affinity orientation may, under appropriate circumstances, use state constitutions or the First, Fifth or Fourteenth amendment of the U.S. Constitution as a basis for suit, as well as the Constitutional right to privacy. 15. Gay and lesbian employees may also bring tort actions such as intentional infliction of emotional distress, intentional interference with contractual relations, invasion of privacy, or defamation. 16. Employers should also be aware of the possibility of several closely-related matters which may arise in affinity orientation cases and cause liability based upon the protected category of gender, for instance, stereotyping as discussed in the gender chapter. 17. If an employer allows lesbians to work and not gay men, this could be the basis for gender discrimination. Case Example: Romer v. Evans, 116 S. Ct. 1620 (1996) Issue: This is the Colorado Amendment 2 case. The issue before the Court was whether a state can amend its constitution to include provisions prohibiting all legislative, executive or judicial action designed to provide any protection from discrimination against gays and lesbians. Facts: Several Colorado cities had ordinances providing protection from discrimination for gays and lesbians. Through a referendum, Colorado citizens voted to amend their constitution to prohibit such protection. The amendment provided in part that “Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practice or relationship shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination...” Decision: No. It is a denial of equal protection for a state to exclude from the protection of its laws a group of targeted citizens. Amendment 2 bears no rational relationship to a legitimate government purpose, which is what a law attempting to treat one group less favorably must do in order to withstand judicial scrutiny. The primary rationale of the state is respect for other citizens’ freedom of association, and in particular liberties of landlords and employers who have personal or religious objections to homosexuality. The “breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause.” Case Questions 1. What do you think of the “special rights” argument? Does it make sense to you? Explain. Student response. 2. What would you do as an employer who didn’t want to hire gays and lesbians in your work place, given this case? Student response. Now that you’ve seen how the U.S. Supreme Court stands on the issue in Romer, what would you do when establishing policies on gays and lesbians in your workplace? Affinity Orientation as a Basis for Adverse Employment Decisions 1. There are several basis upon which an employer may be concerned about gays and lesbians in the workplace, including that the employee: ? is gay or lesbian (i.e., status or orientation) ? exhibits inappropriate workplace behavior such as detailed discussions of intimate sexual behavior or improperly propositioning others in the workplace ? wears clothing, jewelry, or make-up in violation of reasonable workplace grooming codes. ? undergoes gender reassignment surgery ? is in the pre-surgery adjustment stages of such surgery ? is living as a member of the opposite gender ? has primary relationships with those of the same gender 2. An employer should not tolerate from any employee inappropriate workplace behavior such as improperly propositioning other employees. This should not be addressed only when it is done by gay or lesbian employees. There should also not be a presumption that gays or lesbians will be more likely to engage in this type of behavior. 3. A distinction should also be made between status or orientation as a gay or lesbian on the one hand, and on the other, activity which may be inappropriate, even though the law may not protect either in a particular jurisdiction. Case Example: DeSantis v. Pacific Telephone & Telegraph Co., Inc., Strailey v. Happy Times Nursery School, Inc., Lundin & Buckley v. Pacific Tel. & Tel., Co., Inc., 608 F.2d 327 (9th Cir. 1979) Issue: Whether Title VII protects gays and lesbians from employment discrimination on the basis of affinity orientation. Facts: Gays and lesbians brought these actions claiming their employers and former employers discriminated against them in employment decisions because they were gay and lesbian. In one case a male employee of a day care center was terminated for wearing an earring, in another two lesbians involved in a personal relationship were terminated, and in another a male employee was harassed and terminated for being gay. Decision: No. Title VII does not protect gay and lesbian employees from employment discrimination. Congress has not shown any intent other than to restrict the term gender to its traditional meaning. Therefore, this court will not expand Title VII's application in the absence of Congressional mandate. The manifest purpose of Title VII's prohibition against gender discrimination in employment is to ensure that men and women are treated equally, absent a bona fide relationship between the qualifications for the job and the person's gender. Based on similar readings of the legislative history and the principle that "words used in statutes are to be given their ordinary meaning," the EEOC has concluded "that when Congress used the word 'sex' in Title VII, it was referring to a person's gender and not to sexual practices." Case Questions 1. The court said that the employer was discriminating against the parties because of their choice of sexual partners. Notwithstanding the way the issue has historically been treated, does this seem to be a valid basis for judging an applicant for employment? Explain. No. Title VII was enacted to have employees judged based on their qualifications for the job rather than their membership in the protected classes. Using that same theory for gay and lesbian employees, though they are not protected, the same theory would apply. That is, they should be judged on the basis of their qualifications for the job rather than based upon ideas society may hold about a group the employee may belong to. Yes. It is wrong for people to be gay or lesbian and the employer should have the right to choose not to hire gays and lesbians. 2. Do you agree with the parallels which the parties attempted to draw between race discrimination and discrimination on the basis of affinity orientation? Discuss. No. The analogy is that if it is race discrimination in violation of Title VII to discriminate against an employee because the race of the employee's friends, the same should be true of the gender of the employee's sexual partner. However, the original premise is incorrect regarding affinity orientation, because there is no protection for affinity orientation in the first instance. Yes, for the reasons provided by the employees. 3. As a manager, what would you have done in these cases? Why? At the time, given the lack of support for rights for gays and lesbians, the decision is probably simply reflective of the times. However, in this day and age we understand more about the issue and understand that the better way to go is to simply deal with the employee's ability to do the job. LECTURE NOTES 1. When the employer terminates the employee for a combination of reasons, some protected and some not, liability may still ensue. For instance an Asian gay employee who alleges national origin discrimination because the national origin is a protected category may still not be protected if it is simply affinity origin discrimination against someone who happens to be Asian. Case Example: Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th Cir.1989) Issue: Whether a black male who was terminated for wearing make up to work and sued on the basis of race discrimination will be able to use that as a basis for showing a violation of Title VII if he cannot show that whites involved in similar activity were not terminated? Facts: Employee was discharged for disruptive and inappropriate conduct at work. In his view he was falsely accused of disrupting the workflow by continuing to discuss the details of his personal life in the workplace and harassing another employee, and that similarly situated white employees who behaved as he did were not disciplined. Decision: For employer. Although employee stated that he believed he was treated differently because he was black, he failed to allege facts sufficient to establish that other similarly situated white employees were treated differently. He did not claim that the other white employees who also allegedly were gay behaved as he did in openly discussing their private lives while at work, but only compared his behavior in that regard to the behavior of other heterosexuals. Although he alleged he was reprimanded for wearing makeup at work while two other white males, allegedly gay, were only reprimanded for wearing jewelry, there is no indication in the record that the other two men wore any makeup. Case Questions 1. How would you have handled this issue if you had been the manager? Student response. 2. Do you accept the argument that if things were as the employee alleged, it was racial discrimination? Student response. 3. Is there another way to address the issues here besides termination? Discussing the matter with the employee and making him aware of workplace standards and rules rather than terminating him (leaving termination as a last resort). LECTURE NOTES 1. Male employees have also tried to argue that their effeminacy should not be a basis upon which employers can refuse to hire them or to terminate them from their jobs. This argument rarely succeeds and courts routinely side with the employer. Same-Gender Sexual Harassment 1. Since Title VII does not include a prohibition against discrimination on the basis of affinity orientation, an important question in the past few years has been whether an employee sexually harassed by someone of the same gender could bring an action under Title VII. 2. Some courts held that since Title VII did not extend its coverage to discrimination on the basis of affinity orientation, it was inappropriate to allow a same-gender cause of action for sexual harassment. 3. Other courts held that Title VII prohibits sexual harassment of any employee if the effect is to create a work situation different for one group of employees than another based on gender, regardless of the gender and/or affinity orientation of the harasser. 4. The U.S. Supreme Court settled the issue in Oncale v. Sundowner Offshore Oil (see Chapter 8). 5. Under Oncale, the Court preserved Title VII’s exclusion of discrimination on the basis of affinity orientation by holding that sexual harassment of an employee by someone of the same gender is prohibited unless it can be shown that it was actually based on affinity orientation. The Court does not presume that every harassment between employees of the same gender is based on affinity orientation. Transsexual Discrimination 1. Those who have undergone gender reassignment surgery have attempted to argue that they are discriminated against on the basis of gender, but that has not been allowed by courts. 2. It is not the status of the employee as a member of the gender they have been reassigned to that has created the problem. That is, a male who is terminated upon becoming a female is not discriminated against because he is a female. Rather, he is discriminated against because he changed from male to female and that is not given Title VII protection. 3. Transsexual discrimination is one of the fastest growing issues related to affinity orientation. Case Example: Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) Issue: Whether Title VII prohibits discrimination on the basis of gender reassignment surgery? Facts: Employee, a male airline pilot, underwent a gender change operation and became a female. He was then terminated by the airline and brought suit. Decision: For the employer. The district court found that Eastern discharged Ulane because she was a transsexual, and that Title VII prohibits discrimination on this basis. While we do not condone discrimination in any form, we are constrained to hold that Title VII does not protect transsexuals. Case Questions 1. As the manager to whom Ulane reported after surgery, how would you have handled this? Student response. 2. Why do you think Eastern terminated Ulane? Student response. 3. What should be the significance of Ulane's prior flight history and experience? In your view, how should it be analyzed with the other relevant factors here? Student response. Case Example: Jane Doe v. The Boeing Company, 121 Wash. 2d 8 (1993) Issue: Whether an employer who has no responsibility to do so under the law, properly accommodates a male employee undergoing gender reassignment surgery, in permitting that employee to wear unisex clothing, but prohibiting the wearing of pink pearls. Facts: An employee undergoing gender reassignment surgery was provided by the employer with guidelines for how to dress during the period when he was required by his doctors to live as a female. The guidelines were developed with the input of its legal, medical, personnel, and labor relations personnel and outside consultants. The guidelines provided for unisex clothing or male clothing, including blouses, sweaters, slacks, flat shoes, nylon stockings, earrings, lipstick foundation and clear nail polish. The employee continuously went outside the guidelines and eventually wore a strand of pink pearls to work with his outfit. The employer found this unacceptable and terminated the employee. Decision: We recognize that employers have an affirmative obligation to reasonably accommodate the sensory, mental, or physical limitations of disabled employees unless the employer can demonstrate that the accommodation would impose an undue hardship on the conduct of the employer’s business. The issue is whether Boeing had a duty to accommodate Doe’s preferred manner of dress prior to her gender reassignment surgery. We hold that the scope of an employer’s duty to accommodate an employee’s condition is limited to those steps reasonably necessary to enable the employee to perform his or her job. Doe argues that Boeing failed to accommodate. We disagree. The record substantially supports the trial court’s findings that Boeing reasonably accommodated Doe in the manner of dress by allowing her to wear unisex clothing at work. Despite this accommodation Doe determined unilaterally, and without medical confirmation, that she needed to dress as a woman at her place of employment in order to qualify for gender reassignment surgery. We find substantial support for the trial court’s finding that Doe had no medical need to dress as a woman at work in order to qualify for her surgery. In determining what is a reasonable accommodation, the evaluation must begin with the job specifications and how those tasks are impacted by the abnormal condition. Doe’s performance was unchanged by her gender dysphoria. Based on the record, there was no accommodation that Boeing could have provided that would have aided Doe in the performance of her work. How she dressed or appeared had no impact on the physical or mental requirements of her employment responsibilities. Case Questions 1. What do you think the real problem was here? If you say that it was Jane trying to push too hard, explore what that really means. How responsible should the employer be for the discomfort of other employees? What about when the discomfort arises from long-held beliefs based on misinformation which society may have taken for granted until now? Would it be different if the issue was race instead of affinity orientation (i.e., employees did not want to deal with employees of other races in the workplace and were uncomfortable doing so)? Explain. Student response. This case was specifically included to “push the students’ buttons” about the issue of affinity orientation and have them explore what they really feel about it, and thus what they would likely draw on to make judgment calls as managers and supervisors. They will likely stray into the morality issue. Discuss whether the workplace is an appropriate place to bring such considerations to bear. If so, where does it stop? Would they not permit adulterers, fornicators, drunkards, wife beaters or others they may oppose on moral grounds not to work because the employee’s morals were not in line with their own? If not, where do they draw the line and why? 2. Are you surprised that Boeing had eight employees to deal with on this issue? Explain. Are you surprised that an employer dealt with this issue with the depth that Boeing did? Why do you think it did so? Student response. 3. Doe evidently kept going to the female toilet but it was the pink pearls that got her fired. Any thoughts as to why? Explain. Student response. Employment Benefits 1. One of the most active issues in affinity orientation in the past few years has been employment benefits. 2. Many employment benefits taken for granted by others are denied to gays and lesbians, i.e., bereavement leave routinely granted for the death of loved ones is denied for the death of a gay or lesbian’s life partner, as is sick leave to care for family members. 3. In recent years, cities like Atlanta, GA, Ithaca, NY, and Madison, WI, have provided registration of unmarried couples (gay or straight) as domestic partners. 4. Partners must generally be able to prove that they have lived together for a specified length of time and given each other mutual aid and support. 5. Upon proof of the requirements, partners may qualify for certain benefits such as insurance, health benefits, transfer of frequent flyer miles, etc. 6. More than 2,800 private companies and city government now permit their employees to include domestic partners in their health insurance coverage. 7. In May 2002, Connecticut passed legislation extending many rights to same-gender partners including allowing private visits in nursing homes and requiring employers to allow emergency calls from a legally designated person. Case Example: Tanner v. Oregon Health Sciences University, 971 P.2d 435 (Ore, 1998). Issue: Whether denial of insurance benefits to three lesbians’ domestic partners violated the Oregon constitution’s privileges and immunities clause. Facts: The University denied insurance benefits to unmarried domestic partners of three of its lesbian employees who alleged that doing so violated the Oregon privileges and immunities clause. The university argued that it denied benefits to unmarried couples, and it had the unintended benefit of discriminating against those of same-gender affinity orientation. Decision: The court determined that the refusal to grant the benefits was unconstitutional under Oregon’s law. Despite Oregon’s argument to the contrary, the court held that the university had treated members of a class of true citizens disparately, whether intentional or not, and that meant that some were denied the right to equal privileges. Case Questions 1. While this case was pending, the employer decided to revise its policies to extend insurance coverage to gays and lesbians. Why do you think it did so? Student response. 2. List what you consider to be the five best reasons for not extending benefits to gay and lesbian employees. Explain. Now give the arguments for why these reasons may not be good ones. Which do you prefer? Why? Student response. Response will likely include. Goes against the student’s religion; illegal behavior; immoral behavior; don’t want to encourage people to engage in illegal or immoral behavior; don’t want to seem to support something their religion says is wrong; don’t want gays and/or lesbians to be encouraged to come to this workplace thinking they have support or it’s a “safe haven.” These may not be good reasons because they have little or nothing to do with the employee’s ability to do a job, they make judgments and give benefits based on factors not generally used as a basis for providing such benefits, it brings personal religious considerations into the workplace in an inappropriate way, it places the employer in the position of making these judgments about one group, without making them about any other group. 3. Do you understand why the court would hold that the Oregon constitution’s privileges and immunities clause requires that the employer not extend benefits to one group that it will not extend to another unless it can show there is a valid reason for the differentiation? Can you think of a valid reason here? Student response. Management Considerations 1. Since affinity orientation is not a protected category under Title VII, employers have more flexibility in making workplace decisions on this issue. 2. The approach the employer takes will depend in large part on the employer's own views and preferences. 3. Those employers who prefer the benefits of a diverse workplace and who wish to maximize the potential the employee has for growth and contribution within the workplace, will likely choose to deal with the affinity orientation issue in a less restrictive manner. 4. Such employers would be likely to have workplace rules which respect individual rights and judge employees based upon merit and value to the employer's business rather than the ideas one holds about another's personal relationships. 5. If some action of the lesbian or gay employee presents an issue, it should be dealt with as a legitimate workplace issue rather than one which arose solely because of the employee's affinity orientation. The focus is on the conduct, not the affinity orientation of those engaging in the conduct. 6. Employers who decide to have a policy which treats gays and lesbians as full contributors to the workplace should ensure that the message goes out to gay and lesbian employees from the very top. 7. It should be made clear that not only will the employer not discriminate on the basis of affinity orientation, but that it will not be tolerated from other employees, particularly in the form of harassment of gays and lesbians. 8. The employer who does not prefer this approach may have more latitude under the law (depending upon the jurisdiction in which the employer is located) not to take this view, than they would about groups protected by Title VII. 9. Most employers take a middle-ground position. That is, they do not have a specific policy of either support or prohibition, but deal with issues as they arise on a case by case basis. 10. The caution to be heeded is that simply because Title VII or the majority of state fair employment practice laws do not prohibit discrimination on the basis of affinity orientation does not mean that it is not prohibited by relevant state or local laws relating to closely connected issues such as privacy, right to free speech, interference with contractual relations, etc. 11. The laws are changing every day. Employers concerned about workplace decisions should, at the very least, check such laws or case law in their jurisdiction before making final decisions. 12. Even if the law is on the employer's side, the employer may wish to consider other possible repercussions of restrictive employment policies in this area. 13. An example of this is the Cracker Barrel restaurant chain headquartered in Tennessee. Cracker Barrel operates a number of restaurants around the country. With no apparent motivating event, the company announced that it would no longer employ people "whose sexual preferences fail to demonstrate normal heterosexual values which have been the foundation of families in our society." Cracker Barrel dismissed its gay and lesbian employees. Since doing so, it has been the subject of vigorous opposition mainly by the gay and lesbian community. Many of Cracker Barrel's restaurants have been picketed and denounced by vocal protesters. Gays and lesbians have bought stock in order to be able to have a say in its policies. Even though the law may permit Cracker Barrel's actions, some employers may wish to avoid the controversy exhibited here, particularly if there is no pressing need to address the issue. 14. Exhibit 9-6 outlines various issues of interest to gays and lesbian employees which employer wishing to be more inclusive may address. They include non-discrimination policies, bereavement leave for domestic partner, vacation leave transfer, and benefits for domestic partners. Chapter-End Questions 1. Applicant applies for a position with Ace Corporation. During the interview, Ace suspects that applicant is gay. When asked why the suspicion, Ace says that the male applicant acted effeminately. Ace decides not to hire the applicant, who is otherwise qualified. Does the applicant have a cause of action against Ace? It depends. If the applicant is in one of the eight states or over 125 jurisdictions which has anti-discrimination legislation for gays and lesbians, the action by Ace may be illegal. If not, most likely it will not be. 2. When the FBI learns that Mary, its FBI agent, is a lesbian, Mary is fired. Mary goes to an attorney to find out about the possibility of suing to get her job back. What does the attorney likely tell her? The attorney probably tells her that as a lesbian, she is not covered by Title VII of the 1964 Civil Rights Act. As a federal employee, she can, with the government's permission, sue and allege a denial of equal protection in that she is treated differently from other employees for no defensible reason. He would also advise her that due to the sensitive nature of her job, and the history of such litigation, she will probably lose. 3. As a manager, an employee comes to you and tells you that he has a hunch that one of the other employees is probably gay. What do you do? It depends upon the law in the jurisdiction, what your company's philosophy is about such matters, and what the gay employee has done. If the suspected gay employee has done no act for which to be reprimanded, then status as a possible gay is the only factor to consider. If the jurisdiction has no law protecting gays and lesbians, and the company has a conservative philosophy about the issue, then the company may decide simply to terminate the employee. Under employment at will, the employee will have no recourse in an at-will state, and as a private employer, the employee would not have constitutional arguments open to him. There is the possibility of civil action based upon intentional infliction of emotional distress or interference with contractual relations, but given the facts, nothing to support it. The better management approach is to simply leave the allegedly gay employee alone. If, at some point, the employee engages in activity which can form the basis of disciplinary action, it can be handled accordingly. However, there is nothing to lead us to think this will occur. You may wish to tell the reporting employee that the employer judges employees based upon their workplace performance, not non-job-related criteria. This will send the message that the employer is setting a tone which keeps the workplace free of undue suspicion. 4. Charlie the manager, does not like it that Chester wears an earring, and orders Chester to get rid of it or run the risk of termination. Chester refuses. Can Charlie terminate Chester? Probably. This would be more of a dress code issue than anything else, and employers are given wide leeway to determine their workplace dress codes. 5. Bill has gender reassignment surgery and changes to a female and is now Billie. Upon her return to work, Billie is terminated. Can the employer legally terminate Billie for this? Probably, unless the jurisdiction has laws protecting employees based upon affinity orientation. Transgenders are not provided Title VII protection. 6. Maureen brings her same gender partner of fourteen years to a company picnic. One of the other employees treats Maureen poorly after realizing she is a lesbian. Does Maureen have any recourse? No, not unless her company has some sort of procedure for dealing with situations of this sort. 7. In a state which has a human rights law including affinity orientation, Sereta, a secretary in a law firm, comes to work in Doc Marten-type brogan boots, a flannel shirt, and a pair of jeans. The chief personnel officer terminates Sereta when she refuses to change clothes. Sereta brings an action for affinity orientation discrimination. Does she win? If Sereta is a lesbian and the dress she is wearing is objectionable because she looks "too masculine," she may well have a cause of action for affinity orientation discrimination. On the other hand, as previously discussed, the employer has a rather broad right to deal with dress in the workplace and if Sereta's outfit can be shown to be contrary to appropriate workplace attire based on dress code considerations rather than stereotyped ideas of what a female should look like, the employer may have a viable defense. 8. Cy is terminated from his position as chief cartographer for the US Mapping Agency, a department of the federal government, when it is discovered that he is gay. Does Cy have any recourse? As a federal employee, Cy may well have a possible cause of action for violation of his right to equal protection of the law since he is being treated differently than other, non-gay, employees. Since his position may have no defense or security risks, the arguments used to justify discrimination against gays or lesbians on those bases lose their effectiveness. 9. Derry owns his own business and employs about 75 people. Derry is a very "macho" male and detests gay men. Derry has several lesbians working in his company, and does not mind them. When a gay male who is not hired sues Derry for gender discrimination, what is the outcome? Derry will be liable for gender discrimination if he discriminates against only gay males, but not lesbians. While there is no Title VII protection for affinity orientation, employers may not treat male and female gays differently. 10. In a state which prohibits discrimination on the basis of affinity orientation in its human rights provisions, Sheila is terminated when she is supposed to be at her desk, but is found having sex with Donna in the broom closet of their workplace. Will Sheila's termination likely be upheld? Probably. If Sheila was terminated for having sex on the job, the termination is not based on affinity orientation, but rather on Sheila's injudicious workplace activity regardless of affinity orientation. If it were found that the employer had not terminated an employee who had been engaged in heterosexual sex on the job, there may be a basis upon which to attack the termination. Be sure to note to the students that while the question asks about sexual activity on the job, they should not think that gays and lesbians are any more likely to engage in such behavior than other employees. The question was designed to have the students separate the usual opinions about sexual activity from the question of status of the actor, the ability of the person to perform their job, or analysis of the inappropriate workplace behavior engaged in.