Heterosexuality and Title VII

By Kramer, Zachary A. | Northwestern University Law Review, Winter 2009 | Go to article overview

Heterosexuality and Title VII


Kramer, Zachary A., Northwestern University Law Review


INTRODUCTION ............................................................................................................. 205

I. CONTEXT ............................................................................................................. 211

A. Protected Traits .......................................................................................... 212

B. Sexual Orientation ...................................................................................... 216

C. Bootstrapping .............................................................................................. 219

II. HETEROSEXUALITY AND TITLE VII ....................................................................... 220

A. Because of Sex ............................................................................................. 222

B. Because of Sex and Sexual Orientation ....................................................... 224

C The Double Standard .................................................................................. 229

D. Refining the Double Standard ..................................................................... 230

III. RE-ORIENTING TITLE VII ..................................................................................... 233

A. A New Approach ......................................................................................... 234

B. The New Approach in Action ...................................................................... 236

C. Concerns .................................................................................................... 242

CONCLUSION ................................................................................................................ 246

INTRODUCTION

Dawn Dawson was an outsider among outsiders.1 A self-described gender-nonconforming lesbian woman,2 Dawson worked as a hair assistant and stylist trainee at Bumble & Bumble, a high-end salon in New York City.3 Her coworkers at the salon were an eclectic mix of outsiders, and the salon management encouraged its employees to express their nonconformist identities openly.4 Yet Dawson could not fit in with her coworkers. They teased her, saying she should act less like a man and more like a woman.5 They demeaned her in front of clients by referring to her as "Donald."6 And they ridiculed her because of her sexuality, announcing that she "needed to have sex with a man" and that she wore her sexuality "like a costume."7 After working at Bumble & Bumble for less than two years, Dawson was fired from her hair assistant position and kicked out of the salon's stylist training program.8 When the salon manager met with Dawson to inform her of these decisions, the manager explained that Dawson would never be able to get a stylist position outside of New York City because her demeanor and appearance would frighten people.9

Dawson brought a sex discrimination claim under Title VII,10 alleging that she was both fired and harassed because of, among other things, her failure to conform to traditional gender stereotypes.11 Ultimately, Dawson lost her lawsuit.12 In rejecting her gender-stereotyping claim, the Second Circuit held that the alleged discriminatory comments were targeted not at Dawson's gender-nonconformity, but at her homosexuality.13 And because sexual orientation is not a protected trait under Title VII, the court held that Dawson had not stated an actionable discrimination claim.14

The lesson of Dawson's case is that an employee's sexual orientation can swallow up an otherwise actionable claim of sex discrimination. Even though Dawson's Title VII claims were based on her sex and her gendernonconformity, the court concluded that Dawson was trying to "bootstrap" protection for sexual orientation into Title VII by framing discrimination targeted at her sexual orientation as a claim of discrimination based on her gender-nonconformity. …

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