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FEDERAL
CASES RECOGNIZING THAT DISCRIMINATION ON THE BASIS OF GENDER NON-CONFORMITY
AND/OR TRANSGENDER STATUS IS A FORM OF DISCRIMINATION ON THE BASIS OF SEX
U.S. Supreme Court
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (holding that harassment directed at a person because that person does not conform to traditional sex stereotypes is covered by Title VII)
Circuit Courts
Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000) (reinstating Equal Credit Opportunity Act claim on behalf of biologically male plaintiff who alleged that he was denied an opportunity to apply for a loan because he was not dressed in “masculine attire”)
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999) (“[J]ust as a woman can ground an action on a claim that men discriminated against her because she did not meet stereotyped expectations of femininity, a man can ground a claim on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity.”) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989)).
Simonton v. Runyon, 232 F.3d 33 (2nd Cir. 2000) (noting that discrimination based on a failure to conform to gender norms might be cognizable under Title VII)
Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3rd Cir. 2001) (holding that a plaintiff may be able to prove a claim of sex discrimination by showing that the “harasser’s conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender”)
Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000) (noting that “sex stereotyping may constitute evidence of sex discrimination”)
Doe v. Belleville, 119 F.3d 563 (7th Cir. 1997), vacated and remanded on other grounds, 523 U.S. 1001 (1998) (holding that “Title VII does not permit an employee to be treated adversely because his or her appearance or conduct does not conform to stereotypical gender roles” and explaining that “[a] man who is harassed because his voice is soft, his physique is slight, his hair long, or because in some other respect he exhibits his masculinity in a way that does not meet his coworkers’ idea of how men are to appear and behave, is harassed ‘because of his sex’”)
Schmedding v. Tnemec Co., Inc., 187 F.3d 862 (8th Cir. 1999) (holding that the plaintiff had stated a Title VII claim where the “harassment included rumors that falsely labeled him as homosexual in an effort to debase his masculinity”)
Nichols v. Azteca Restaurant Enterprises, 256 F.3d 864, 874-75 (9th Cir. 2001) (holding that harassment “based upon the perception that [the plaintiff] is effeminiate” is harassment because of sex, in volation of Title VII and the Washington Law Against Discrimination, and overruling DeSantis v. Pacific Tele. & Tele. Co., Inc., 608 F.2d 327 (9th Cir. 1979)).
Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (noting that Title VII prohibits “[d]iscrimination because one fails to act in the way expected of a man or woman”)
District Courts
Centola v. Potter, 2002 WL 122296, -- F. Supp. 2d – (D. Mass. 2002) (holding that Title VII prohibits harassment based on a perception that a person does “not conform with their ideas about what ‘real’ men should look or act like”)
Ianetta v. Putnam Investments, Inc., 142 F. Supp. 2d 131 (D. Mass. 2001) (holding that discrimination based on “failing to meet the male gender stereotype” is prohibited by Title VII)
Snelling v. Fall Mountain Regional Sch. Dist., 2001 WL 276975 (D.N.H. 2001) (holding that harassment based on “sex-based stereotypes of masculinity” is actionable under Title IX)
Bilunas v. Henderson, 2000 WL 639329 (D.N.H. 2000) (noting that discrimination on the basis that one does not “project, or dress in a manner consistent with the stereotypical male image” is unlawful discrimination on the basis of sex)
Samborski v. West Valley Nuclear Services, Co., 1999 U.S. Dist. LEXIS 20263 (W.D.N.Y. 1999) (holding that “evidence of sex stereotyping may provide proof that an employment decision or an abusive environment was based on gender”)
Miles v. New York Univ., 979 F. Supp. 248, 249 (S.D.N.Y. 1997) (holding Title IX prohibits sexual harassment of a transsexual woman)
Bianchi v. City of Philadelphia, 2002 WL 23942 (E.D. Pa. 2002) (holding that a Title VII claim can be made out by showing that the “harasser’s conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender”)
Doe v. United Consumer Financial Services, Case No. 1:01 CV 1112 (N.D. Ohio 2001) (holding that a transsexual had stated a claim under Title VII where the allegations indicated that her termination may have been based, “at least in part, on the fact that her appearance and behavior did not meet United Consumer’s gender expectations (particularly in light of United Consumer’s alleged inability to categorize her as male or female ‘just from looking’)”)
Hamm v. Weyauwega Milk Products, Inc., -- F. Supp. 2d --, 2002 WL 984816 (E.D. Wis. 2002) (holding that a plaintiff can prove sexual harassment in violation of Title VII by showing “that the harassment was based upon perceived non-conformance with gender-based stereotypes”)
Jones v. Pacific Rail Services, 2001 WL 127645 (N.D. Ill. 2001) (noting that sex discrimination claims have “long included harassment based on a woman’s failure to meet stereotyped expectations of femininity” and citing Doe v. Belleville for the proposition that “Title VII does not permit an employee to be treated adversely because his or her appearance does not conform to stereotypical gender roles”)
Broadus v. State Farm Ins. Co., 2000 WL 1585257 (W.D. Mo. 2000) (holding, in a case involving a transsexual plaintiff, that “[s]exual stereotyping which plays a role in an employment decision is actionable under Title VII”).
Montgomery v. Local Sch. Dist. No. 709, 109 F.
Supp. 2d 1081 (D. Minn. 2000) (holding that harassment based on “stereotyped
expectations of masculinity” is prohibited by Title IX)
Heller v. Columbia Edgewater Country Club, 2002 WL 519746, -- F. Supp. 2d – (D. Or. 2002) (holding that Title VII prohibits harassment based on a perception that the person “did not conform to [the defendant’s] stereotype of how a woman ought to behave, and pointing out that the defendant perceived the plaintiff to be gender non-conforming because the plaintiff “is attracted to and dates other women, whereas [the defendant] believes that a woman should be attracted to and date only men”)
SECONDARY SOURCES
Office of Civil Rights, Revised Sexual Harassment Guidance, § III (Jan. 2001) (“[G]ender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, but not involving conduct of a sexual nature, is also a form of sex discrimination to which a school must respond . . .”) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (holding sex-stereotyping is a form of sex discrimination prohibited by Title VII) (emphasis added)
© 4/23/02 NCLR