As the U.S. Supreme Court has recognized, Title VII of the Civil Rights Act of 1964 is intended to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotyping.” Recently, a federal court in Virginia refused to dismiss the claim of a male employee who said that he was treated differently and subjected to a hostile work environment because he was viewed as effeminate and told that he was not a “real man.” Henderson v. Labor Finders of Virginia, Inc., No 3:12cv600 (April 2, 2013).
Raymond Henderson began working for Labor Finders of Virginia, Inc., a staffing company, in April 2010. Although the company had a policy of giving preference to employees who had their own transportation, Henderson (who had transportation) was assigned to projects only when it was difficult to find someone else to fill a work assignment. Henderson filed a charge with the Equal Employment Opportunity Commission (EEOC) and, ultimately, a lawsuit alleging that he was discriminated against because Labor Finders found him to be effeminate. Henderson alleged that he was routinely subjected to verbal epithets and slights by and in the presence of his supervisors, and that he was told he “looked just like a woman,” that he was not a “real man,” and that he was “a woman pretending to be something else, because he . . . was definitely not a male or a man.”
Although Henderson alleges that he tried to complain to Labor Finders’ management, he claimed that he never received a response and, in fact, was ultimately told that he was going to lose his job because he was a “troublemaker” and was creating problems for Labor Finders. He filed a lawsuit against the company and a number of individuals, claiming violations of Title VII and a number of state laws. The individuals were dismissed from the lawsuit, as Henderson had failed to name them in his EEOC charge. Labor Finders then filed a motion to dismiss the state and federal claims against the company.
The U.S. District Court for the Eastern District of Virginia granted Labor Finders’ motion as to the state law claims but denied it with respect to the federal Title VII issues. Henderson was able to overcome the motion to dismiss the Title VII claim because, according to the court, he presented facts sufficient to “allow the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.”
In its analysis, the court pointed out that Henderson’s claim “presents a tension between two well-settled principles of law.” First, it is undisputed that Title VII does not afford a cause of action for discrimination based on sexual orientation. However, at the same time, employers are not permitted to assume or insist that employees match the stereotype associated with their gender group. Title VII permits recovery, for instance, for a male employee who is treated less favorably because he is viewed as “unmanly.”
In a detailed analysis of Henderson’s claims, the court held that Henderson had set forth sufficient allegations of gender stereotyping to move his claim forward. The court found that Henderson’s perceived failure to conform with accepted gender norms was thought to reflect poorly on Labor Finders and was viewed as displeasing the company’s clients. Therefore, Henderson’s claim that he was treated differently because of his appearance and behavior was sufficiently set forth in his complaint. The court further held that Henderson sufficiently stated a claim for hostile work environment under the gender stereotyping theory by detailing the statements made by and around supervisors, including the remarks that he was not a “real man” and “looked just like a woman.”
The line between sexual orientation, which is not yet prohibited by federal law (although prohibited under some state statutes), and discrimination “because of sex” can be difficult to draw. However, employers must recognize that an employer that takes an adverse action against an individual because he or she does not fit within sexual stereotypes is engaging in discrimination, because that discrimination would not have occurred but for the individual’s sex. If a company’s disciplinary actions are meant to punish or belittle non-compliance with gender stereotypes, the actions may constitute a violation of Title VII’s “because of sex” provision.
Maria Greco Danaher is a shareholder in the Pittsburgh office of Ogletree Deakins.