Sexual discrimination can be gender case
Published 02/26/02

While federal employment discrimination law does not generally afford the same kind of protection to workers from discrimination based upon sexual orientation, as it does for discrimination based upon gender, a recent decision from the Massachusetts Federal Court illustrates that anti-gay harassment in the form of inappropriate sexual stereotyping can amount to gender discrimination and thereby be prohibited under federal law.

Title VII of the 1964 Civil Rights Act prohibits discrimination on a variety of bases including sex, but not sexual orientation. On February 4, 2002, in the case of Centola v. The United States Postal Service, a Massachusetts Federal Court found that Centola was able to go before a jury on his claims that he was discriminated against based upon his sex and not because of his sexual orientation. The judge noted that Title VII does not afford protection to workers against discrimination based upon sexual orientation, however, Centola had provided sufficient evidence to support the inference that he had been harassed because of his sex and his failure to conform to his coworkers’ sexual stereotypes.

The facts presented by Centola showed that, while they subjected him to anti-gay epithets, such harassment included challenges to his failure to meet their sexual stereotype of maleness.

For example, the act of taping a picture of Richard Simmons "in pink hot pants" to Centola’s workspace by his coworkers along with other actions taken by coworkers could be evidence that Centola’s coworkers harassed him because his failure to conform to their idea of what real men should look like. The Court noted that Richard Simmons "in pink hot pants" is hardly what most people in our society would interpret as a masculine icon and that a reasonable jury could find this activity to constitute harassment.

The Court held that if an employer either acts upon stereotypes about sexual roles in making employment decisions or allows the use of sexual stereotypes in the creation of a hostile or abusive work environment, the employer opens itself up to liability under the Title VII prohibition of discrimination on the basis of gender. The Court noted that such interpretation is not distinguishable from a woman having a Title VII employment discrimination claim for her failure or unwillingness to meet stereotypical expectations of femininity.

The Court further noted that the employer’s claim that Centola believed he was being harassed because he was gay does not prevent his moving forward with his Title VII case. It is the employer and coworkers’ motivation for the discrimination and not the victim's subjective intent that controls in these cases.

The New Hampshire state employment discrimination law does include a prohibition against employment discrimination based upon sexual orientation. However, the Centola case is an important reminder if an employer permits or condones the vilification of a female worker for not being "feminine" enough or a male worker for not being more "manly", this may subject the employer to a valid employment discrimination claim, irrespective of whether the worker is straight, gay, or bisexual.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, PA whose legal practice includes counseling businesses and business persons on a variety of legal issues and advocating on their behalf. Attorney Marr is also an adjunct professor at Daniel Webster College where he teaches business law. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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