Loving beyond the Binary: Applying Associational Discrimination to Gender Identity under Title VII

By Hamilton, Christopher L. | Boston University Law Review, October 2019 | Go to article overview

Loving beyond the Binary: Applying Associational Discrimination to Gender Identity under Title VII


Hamilton, Christopher L., Boston University Law Review


Introduction

In October 2014, Allegra Schawe-Lane, a transgender4 woman, and her husband, Dane Lane, a cisgender5 man, began working in a northern Kentucky warehouse owned by online retail giant Amazon.6 The couple had specifically applied to work at Amazon because of its reputation for being LGBTQ+ friendly; the company's corporate policy explicitly "prohibits discrimination based on sexual orientation and gender identity."7 "I thought we would be safe and accepted," said Schawe-Lane.8 However, the couple's experience with Amazon was "like a bad dream"9-one that is unfortunately all too common in the American workplace for transgender individuals and their partners.

Schawe-Lane claims that she was regularly misgendered10 by her colleagues and supervisors, who called her derogatory terms including "tranny" and "shemale."11 Moreover, she alleges that she was repeatedly harassed in heinous ways, from threats of physical and sexual violence to coworkers peeking into her bathroom stall to look at her genitalia.12 When Schawe-Lane brought her complaints to management, she claimed that her supervisors deliberately referred to her "by male pronouns and titles" and that her claims "were never investigated by Amazon."13

Schawe-Lane's husband was also allegedly subjected to various forms of discrimination at Amazon. Lane claims that he was sexually harassed by two male coworkers, who inappropriately touched him, told him that his wife was a prostitute, and made repeated and unwanted sexual advances toward him.14 On one occasion, while the couple was walking together, one of their coworkers shouted at them, "You should get fucking fired, faggots!"15 Lane also alleges that his supervisors stopped allowing him to take his breaks at the same time as Schawe-Lane and that they were both subjected to heightened scrutiny and discipline for fictional work offenses.16

In a particularly severe and dangerous incident, the brake lines on the couple's car were severed (purportedly by a fellow Amazon employee) while in the warehouse's secured parking lot. Luckily, they discovered the problem before either was injured.17 Fearing for their lives, both Lane and Schawe-Lane resigned from Amazon in early October 2015.18

The couple filed a civil complaint against Amazon in August 2017, claiming, inter alia, that the company discriminated against them "because of sex" in violation of Title VII of the Civil Rights Act of 1964.19 Despite the fact that Lane is a masculine-presenting cisgender man in a heterosexual relationship with Schawe-Lane,20 he nevertheless brought his own separate Title VII claim against Amazon for "instituting] a campaign of harassment and bullying against" him because of "his association with a person in a protected category"-his transgender wife.21

The couple eventually settled the lawsuit with Amazon without proceeding to trial,22 so there is no way to know whether Lane's Title VII claim would have prevailed in court (although one could surmise that Amazon saw at least some merit in his claims, given its decision to settle).23 However, Lane's claim raises an interesting legal question: Can a cisgender individual in a heterosexual relationship bring a sex discrimination claim against their employer under Title VII based on their intimate association with their transgender partner?

Before answering this question, it is imperative to first define and distinguish gender identity and sexual orientation. Gender identity and sexual orientation are commonly misperceived to be the same, as evidenced by Lane and SchaweLane's coworker calling them a homophobic slur, when in fact they are in a heterosexual relationship. In actuality, sexual orientation and gender identity are distinct.24

Sexual orientation is an individual's "inherent or immutable enduring emotional, romantic or sexual attraction to other people."25 As sexual orientation is not dependent on gender, a transgender person could be "gay, straight, bisexual, asexual, or a whole host of other sexual identities. …

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