Perceived Homosexuals: Looking Gay Enough for Title VII

Under the conventional view of Title VII, gay and lesbian workers can bring discrimination claims based on gender stereotyping but not sexual orientation. This Article analyzes 117 court cases on gender stereotyping in the workplace in order to show that the conventional view is wrong. In cases brought by "perceived homosexuals," courts distinguish not between gender stereotyping and sexual orientation claims, but between two ways that violations of gender norms can be perceived: either as something literally seen or as something cognitively understood. This Article shows that plaintiffs who "look gay" often find protection under Title VII, while plaintiffs thought to violate gender norms-through known or suspected sexual activity, friendships, hobbies, or choice of partner-almost never win.By privileging appearances over identity, these cases run counter to theories of antidiscrimination law that favor blindness and assimilation, and they upend accounts of "covering" that are widely accepted in discussions of law and sexuality. These cases reverse courts' usual hostility to appearance claims, especially Title VII challenges to makeup and grooming requirements, as well as courts' usual sympathy to claims based on activities like child rearing, known to take place outside of work. Meanwhile, on a practical level, these cases threaten to increase the salience of sexual orientation in the workplace; help entrench the stereotypes they are meant to proscribe; and isolate the claims of successful Title VII litigants from the more assimilationist demands made by gay plaintiffs in areas like marriage, adoption, and military service. As courts have quietly begun granting protection to only the most visible subset of gay workers, this Article asks: at what cost, both to LBGT workers and to ongoing debates over the protections those workers should receive under federal law?"The world [t]hinks through its eyes . . . ."1INTRODUCTIONIf you look or act sufficiently "gay" at work, you might currently find protection from discrimination in at least half of the nation's courts of appeals. If, however, your coworkers or employers simply know or think you are gay, you are not only unprotected under federal law, but your claim is that of a "bootstrapper" trying to force sexual orientation into Title VII against the will of Congress.2Contrary to popular wisdom and most academic theorizing, employment-discrimination law has become, for gays and lesbians, an area not only where "appearances . . . matter,"3 but in fact where appearances take precedence over knowledge, and one's look and affect receive more protection than one's sexual identity. Under federal law as interpreted by an increasing number of federal courts, gay and lesbian workers can be fired, demoted, not hired, or openly harassed because of their sexuality-unless the victims of discrimination are sufficiently flamboyant (if male) or butch (if female). These courts protect "actual or perceived sexual orientation"-the words come from legislation repeatedly introduced in Congress4-only when an employee's sexuality is "perceived" through the senses as something that can literally be seen or heard. What it might mean to look or sound "gay," or what courts seem to think it means, is a question on which this Article will linger.Title VII, federal law's chief protection against employment discrimination, does not explicitly prohibit discrimination based on sexual orientation,5 and judges have almost uniformly declined to enfold sexuality within Title VII's "sex" prong.6 But, for the past two decades, courts have recognized Title VII claims by employees who are perceived to violate gender stereotypes.7 In recent years, gay and lesbian employees have increasingly followed this course, describing themselves as violators of gender stereotypes for the purpose of federal employment-discrimination claims.8 Under what is now the conventional view of Title VII, gender stereotyping and sexual orientation comprise two categorically different kinds of discrimination claims, and Title VII recognizes only the former. …