I. Sexual Stereotyping

A. The Use of Sexual Stereotypes B. Sexual Stereotyping and Sexual Orientation II. Domestic Partnership Benefits

A. Legal Recognition of Domestic Partnerships B. Developments in the Law Regarding Domestic Partner

Benefits C. Creating A Domestic Partner Benefits Plan III. Employment Discrimination Based on Sexual Orientation

A. Introduction ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 33---------------------------------------

B. Federal Law C. State, County and Municipal Laws D. Remedies Under Other Legal Theories E. Public Employees: Constitutional Standards F. Public Employees: Government Interests IV. Sexual Orientation Harassment

A. Overview B. Harassment of Men and Women is Prohibited C. Same-Sex Harassment D. Same-Sex Harassment: Quid Pro Quo Cases E. Same-Sex Harassment: Hostile Work Environment F. Same Sex Harassment: Hostility Based on Sexual

Orientation Does not Create Environmental Harassment Claim

G. Harassment of Both Sexes H. Local Laws Prohibiting Sexual Orientation

Harassment V. Domestic Partnership Benefits: Samples Policies and

Related Information

*Robert B. Mison (San Francisco), Steefel, Levitt & Weiss and Walter Cochran-Bond (Los Angeles), Bettina B. Plevan (New York) and Paul Salvatore (New York), Proskauer Rose Goetz & Mendelsohn.

This Outline contains updated excerpts from Avoiding and Defending Against Claims of Gender and Sexual Orientation Discrimination in the Workplace originally presented by Proskauer Rose Goetz & Mendelsohn on October 6, 1993 at its annual Law and the Workplace seminar and is reprinted here with permission.

I. Sexual Stereotyping

The use of stereotypical assumptions about men and/or women in employment decisions is a form of gender discrimination prohibited by law. Recent case law has addressed the issue in the context of professional organizations, frequently regarding promotion decisions.

A. The Use of Sexual Stereotypes

1. In 1989, the Supreme Court ruled that dis-

crimination on the basis of sex stereotyping violates Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Hopkins, a senior manager at an accounting firm, was denied consideration for partnership because she was not deemed "feminine" enough by the partners who were evaluating her. The evaluation committee solicited evaluations from the entire partnership. Among the subjective evaluations were comments describing Hopkins as "macho," and "overcompensating for being a woman," and suggesting that she take "a course in charm school" and "walk more femininely, talk more femininely, dress more femininely, wear make-up,

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have her hair styled and wear jewelry." Id. at 235. The U.S. Supreme Court held that the consideration of these comments in the evaluation process was impermissible sex discrimination:

An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.

Id. at 251.

The district court on remand awarded Hopkins admission to partnership, backpay in the amount of

$371,000.00 and attorney's fees. Hopkins v. Price Waterhouse, 737 F. Supp. 1202 (D.D.C.), aff'd, 920 F.2d 967 (D.C. Cir. 1990).

1. Ezold v. Wolf, Block, Schorr and Solis-Cohen,

751 F. Supp. 1175 (E.D. Pa. 1990), rev'd, 983 F.2d 509 (3d Cir. 1992): At the District Court level, the court held that a law firm denied a female associate partnership while it granted partnership to a number of less qualified male associates. In reaching the conclusion that the firm had discrim- inated, the district court considered that the firm had criticized the female associate for being: "too involved with women's issues in the Firm," 751 F. Supp. at 1192; and "'very demanding'" and insufficiently "nonassertive and acquiescent to the predominantly male partnership." Id. at 1189.

The Court of Appeals, however, disagreed and held that the District Court had erred by substituting its judgment for that of the firm's evaluation committee. The proper analysis should not have been whether in the court's view the lack of legal analytical ability was crucial to success as a partner. Rather, the court should have analyzed whether male associates who were granted partnership had been similarly criticized.

1. Bruno v. City of Crown Point, 950 F.2d 355

(7th. Cir. 1991), cert. denied, 120 S. Ct. 2992 (1992): During a job interview for the position of paramedic on an ambulance, the employer asked the sole female applicant questions relating to child care, her spouse's feelings about her seeking the job and her spouses's job, which the employer did not ask male applicants. The Court of Appeals stated: "While family questions are

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important, an interviewer should not single out women and focus on them as if they were the only sex concerned about how family responsibilities may affect the demands of the job." 950 F.2d at 362.

2. Drinkwater v. Union Carbide Corp., 904 F.2d

853 (3d Cir. 1990): In attempting to establish a sexual harassment claim based on a hostile environment, a female market research employee alleged that her employer made impermissible demands upon her concerning her makeup, eyeshadow and clothing. Although finding that there was insufficient evidence to sustain the claim, the Court of Appeals stated that:

Undue preoccupation with what female employees look like is not permissible under anti-discrimination laws if the same kind of attention is not paid to male employees. Traditional ideas about what a woman should look like are not legitimate criteria for evaluating women in the workplace.

Id. at 862-63.

1. Vincenti v. Hilliard-Lyons, Inc., 1991 U.S.

App. LEXIS 29376 (6th Cir. 1991): An employer terminated a female trader after she became engaged to the son of one of its competitors because the employer was concerned that the female employee would divulge proprietary information. The female employee alleged that although a number of male traders were married to women who worked at competitors none of them were terminated because the employer believed that women were more likely than men to engage in "pillow-talk."

In upholding the decision in favor of the employer, the Court of Appeals acknowledged that existence of the stereotype, but held that the employee had presented no directed evidence that the employer had relied on the stereotype in reaching its decision to terminate her. See id. at *10.

A. Sexual Stereotyping and Sexual Orientation

1. Although sexual orientation was not an issue

in Price Waterhouse, gay plaintiffs who can show similar gender stereotyping may also have a cause of action. Note, Sex(ual Orientation) and Title VII, 91 Colum. L. Rev. 1158, 1180 (1991) (hereinafter Sexual Orientation)).

2. A few courts have rejected arguments that

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discrimination against homosexual male employees because they are "effeminate" violates Title VII. See, e.g., Smith v. Liberty Mutual Ins. Co., 569 F.2d 325 (5th Cir. 1978); DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979).

3. Employers can claim in their defense that the

employee was treated differently because of sexual orientation (which is currently permissible under Title VII) and not on the basis of gender stereotyping. (But protection is available under some state discrimination laws. See infra Part III(c)).

a. The Sixth Circuit rejected on two

grounds a Price Waterhouse claim by a homosexual employee whose co-workers harassed him by describing the sexual acts they presumed that he performed. Dillon v. Frank, 1992 U.S. App. LEXIS 766, 58 Empl. Prac. Dec. (CCH)  41332 (6th Cir. 1992).

First, the court held that the co-workers would have objected to the sex acts regardless of whether a woman or man had performed them, so no gender discrimination was involved.

Second, the court said that whereas in Price Waterhouse the plaintiff was placed in a "Catch-22" situation because the "male" traits such as aggressiveness for which she was penalized were also traits she needed to be promoted, Dillon's supposed activities or characteristics were irrelevant in the workplace and thus did not place him in such a Catch-22. Dillon, 1992 U.S. App. LEXIS 766, at *28-29.

1. A claim of gender stereotyping may be the

only potential claim available to gay men and lesbians under Title VII. In fact, some commentators have suggested that gay people are discriminated against because they do not conform to an expectation of gender roles, and thus all discrimination on the basis of sexual orientation is actually impermissible gender stereotyping. See, e.g., Sexual Orientation, supra, at 1183; Developments -- Sexual Orientation and the Law, 102 Harv. L. Rev. 1508, 1580-1581 (1989) (hereinafter Sexual Orientation and the Law).

Although this argument has not been adopted in the Title VII context, courts and legislatures have considered it in other contexts. For example, the Minnesota sexual orientation anti-discrimination law includes in its protected class definition

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anyone "having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness." 1993 Minn. Ch. Law 22 (1993).

I.Domestic Partnership Benefits

Most benefits available to the legal spouses of employees are not available to unmarried domestic partners of employees. Unmarried workers in long-term relationships, both opposite-sex and same sex relationships, are increasingly asserting that they are not being compensated equally to similarly situated married co-workers. Domestic partnership benefits raise many legal issues relating to discrimination based on marital status and sexual orientation, tax law treatment, and COBRA rights.

Federal, state and local laws do not expressly require an employer to provide domestic partnership benefits. Nevertheless, an increasing number of employers and law firms are offering domestic partnership benefits to their employees.

Advocates of domestic partnership rights focus on two arenas of change: (1) legal recognition of or registration for non-traditional relationships, and (2) the extension of employer-provided benefits to non-married domestic partners.

Generally, a "domestic partnership" refers to "two persons who reside together and who rely on each other for financial and emotional support." Robert L. Eblin, Domestic Partnership Recognition in the Workplace: Equitable Employee Benefits for Gay Couples (and Others), 51 Ohio St. L.J. 1067, 1069 n.11 (1990). Though often included in the definition, a sexual relationship is not necessarily a requirement of a domestic partnership. Id.

A. Legal Recognition of Domestic Partnerships

1. State Law Provisions

Currently, no state recognizes marriages between two persons of the same sex. Attempts have been made to enact statewide registration of domestic partnership registration, but to date they have been unsuccessful.

Recently, the Hawaii Supreme Court ruled that denying same-sex couples the right to marry may violate the Equal Protection Clause of Hawaii's Constitution. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). A plurality of Hawaii's Supreme Court found the state's marriage statute to be a prima facie violation of Hawaii's equal protection guarantee. Since "sex" (or gender) is a protected class in the Hawaii Constitution, and marriage is a civil right protected by Hawaii's Equal

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Protection Clause, the plurality required the state on remand to show that its policies limiting marriage to opposite-sex couples serve a compelling state interest and are narrowly drawn to serve those interests without unnecessarily abridging constitutional rights. The presumptively unconstitutional discrimination was viewed as being based on the plaintiffs' sex, not on their sexual orientation. Although this opinion raises the prospect that Hawaii might become the first state to recognize same-sex marriages, the outcome is by no means certain. But see, Dean v. District of Columbia, 653 A.2d 307 (D.C. App. 1995) (D.C.'s Human Rights Act did not require D.C.'s marriage statute to include same-sex marriages).

1. Municipal Ordinances

Several municipalities have passed measures allowing unmarried couples to register as domestic partners. See, e.g., Ann Arbor, Mich., Code  9:85 - 9:95 (1991); Atlanta, Ga., Ordinance 93- 0-0776 (1993); Berkeley, Cal., Admin. Proc. No. 2- 37 (1988); Ithaca, N.Y., Ordinance No. 91-5 (Jan. 28, 1991); Madison, Wis., Code  7.1 - 7.8 (1991); Minneapolis, Minn., Code ch. 142 (1991); New York City, N.Y., Executive Order No. 48; (Jan. 7, 1993); San Francisco, Cal., Code ch. 62 (1990); West Hollywood, Cal., Code  4220 - 4228 (1985).

a. New York City, New York: A domestic

partnership is defined as two people, both of whom are 18 years of age or older, neither of whom is married or related by blood in a manner that would bar their marriage in New York State, of a close and committed personal relationship, who live together and have been living together on a continuous basis, and have executed a registration certificate as domestic partners with the City Clerk.

b. San Francisco, California: Domestic

partners are defined as two adults who have chosen to share one another's lives in an intimate and committed relationship with mutual caring, who live together, and have agreed to be jointly responsible for basic living expenses incurred during the domestic partnership. A declaration of domestic partnership form must be registered with the County Clerk.

Although some municipalities provide for the extension of benefits (some including healthcare packages) to the domestic partners of municipal employees (see, e.g., Los Angeles, New York City,

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San Francisco and Seattle), none of the registration ordinances require that private employers provide such benefits.

A. Developments in the Law Regarding Domestic Partner


Domestic partner advocates have attempted to obtain benefits from public and private employers through the collective bargaining process, by invoking statues prohibiting marital status discrimination and sexual orientation discrimination, and/or by reliance on employer policies against discrimination. Although employees have been unsuccessful to date, litigation continues, and in the future anti-discrimination laws might be extended by amendment or incorporation to cover domestic partner benefits.

1. Marital Status Discrimination Claims

Gay men and lesbians have argued that the granting of employment benefits to only an employee's legally recognized spouse is unlawful marital status discrimination. Because gay men and lesbians cannot marry, as no state currently recognizes same-sex marriages, domestic partnership advocates argue that treating non-married people differently is discrimination.

a. Federal Law does not prohibit marital

status discrimination.

The Equal Employment Opportunity Commission ("EEOC"), however, has stated in its guidelines that employer rules that forbid or restrict the employment of married women unlawfully discriminate against women if those rules do not also apply to married men. (29 C.F.R.  1604.4(a) (1992)).

a. State law:

i. Many states include marital status dis- crimination among the enumerated categories upon which an employer may not discriminate. See, e.g., Alaska Stat.  18.80.220 (1986); Cal. Gov't Code  12940(a) (West 1980); Conn. Gen. Stat. Ann.  46a-60 (West 1986); Del. Code Ann. tit. 19,  711 (1979); D.C. Code Ann.  1-2512 (1987); Fla. Stat. Ann.  760.10(2) (West 1986); Haw. Rev. Stat.  378-2 (1985); Ill. Ann. Stat. ch. 68, para. 2-102 (Smith-Hurd 1989); Md. Ann. Code art. 49B,  16 (1979); Mich. Comp. Laws Ann.  37.2202(1) (West 1985); Minn. Stat. Ann.  363.03 Subdiv. 1 (West Supp. 1991); Mont.

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Code Ann.  49-2-303 (1989); Neb. Rev. Stat.  48-1104 (1988); N.H. Rev. Stat. Ann.  354- A: 8 I-III. (1984); N.J. Stat. Ann.  10:5- 12 (West 1976); N.Y. Exec. Law  296 U (McKinney 1982); Or. Rev. Stat  659.030 (1989); Wash. Rev. Code Ann.  49.60.180 (West 1990); Wis. Stat. Ann.  111-321-322 (West 1988).

ii. State and local prohibitions against marital status discrimination are designed primarily to ensure that an individual's status as a married person or as a single person is not the basis for providing employee benefits or making other employment decisions. To date, courts have not generally held that these state and local laws require employers to offer benefits to unmarried partners.

1. A few courts have recognized that the

granting of domestic partnership benefits to only the legally recognized spouses of employees violates local marital status and sexual orientation discrimination laws.

a. Gay Teachers Ass'n v. Board of Educ. of

the City of New York, N.Y.L.J., Aug. 23, 1991, at 21 (Moskowitz, J.): The New York Supreme Court held that the Gay Teachers Association had alleged a cause of action under Executive Order No. 28 which prohibits discrimination based on sexual orientation and under the New York Human Rights Law based on marital status discrimination. The case has thus far survived a motion to dismiss and is still pending.

b. Anglin v. Minneapolis, Minneapolis

Commission on Civil Rights, No. 88180-EM-12 (Nov. 17, 1992): The Minneapolis Commission ruled that the denial of benefits to the same-sex partners of three librarians violated the City's ordinance which prohibits discrimination based on affectional preference. The commission also held that the refusal to grant benefits to the domestic partners of the librarians had a disparate impact upon lesbians. But see, Lilly v. City of Minneapolis, 527 N.W.2d 107 (Minn. App. 1995) (city ordinance granting health benefits to domestic partners of municipal employees is ultra vires and without legal force).

2. A number of courts have recently

reinterpreted state law definitions of family, ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 41---------------------------------------

extending to unmarried cohabitants rights that have historically been reserved for "traditional families." Although not addressing domestic partnership benefits directly, a new definition of terms such as "family" and "spouse" may affect the manner in which marital status statutes are applied.

a. Braschi v. Stahl, 74 N.Y.2d 201, 543

N.E.2d 49, 544 N.Y.S.2d 784 (1989). The New York Court of Appeals extended the definition of "family" under New York City's rent control law to include same-sex couples living together in a committed relationship. The court held that determining what constituted a family under the statute required "an objective examination of the relationship of the parties . . . including the exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services." 74 N.Y.2d at 212-13, 542 N.E.2d at 55, 544 N.Y.S.2d at 790.

It is possible that the court could redefine "spouse" in a similar fashion and thus require that domestic partners be accorded the same benefits as traditional spouses.

a. Reep v. French, Civil No. 89-4229 (Mass.

Dist. Ct., Northampton Div. July 9, 1990), appeal filed, No. A.C. 91-P-392 (Mass. App. Ct. July 25, 1990). The court held that a woman who left a job to follow her unmarried partner left for "good cause," and was consequently entitled to unemployment insurance benefits.

b. In re Michael D., SF 24774, Cal. Unempl.

Ins. App. Bd. (Sept. 13, 1985). A state appeals board held that a gay man who left work to care for his lover who was dying of AIDS had left for "good cause" and was entitled to benefits. Though the men were not related by blood or marriage, they were "family members" within the meaning of the statute. Similarly, unmarried partners have been found to be "good faith" family members for workers' compensation purposes.

c. But see, Ross v. Denver Department of

Health and Hospitals, 1994 Colo. App. LEXIS 97 (April 7, 1994). A Colorado appeals court denied family sick leave benefits to a

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lesbian employee for the time she took off to care for her domestic partner. The statute covering public employees contains an exhaustive list defining who is a family member for purposes of sick leave benefits, including husbands and wives, but not domestic partners. Id. at *3. The court strictly adhered to the letter of the statute, emphasizing that domestic partners are not covered.

1. Employer Policies

Many employers have voluntarily adopted non-dis- crimination policies that prohibit, among other things, discrimination in compensation on the basis of sexual orientation and/or marital status.

In those situations when employers have a such an internal policy, an employee may contend that the denial of domestic partnership benefits is a violation of that policy. See, e.g., Gay Teachers Assoc. v. Board of Ed. of the City of New York, N.Y.L.J., Aug. 23, 1991, at 21 (Moskowitz, J.).

Employees bringing such a claim would have to prove that: the employers' internal employment policies are applicable and binding, and benefits are a form of compensation to which the employee is entitled.

a. In Newport News Shipbuilding & Dry Dock

Co. v. EEOC, 462 U.S. 669, 682 (1983), the Supreme Court held that health insurance and other fringe benefits are "compensation, terms, conditions, or privileges of employment." The Court in that case found that a health plan that provided more generous pregnancy benefits to female employees then to wives of male employees, was unlawfully discriminatory.

1. Collective Bargaining

Unions have begun to pressure employers to provide domestic partner benefits, particularly if their collective bargaining agreements contain non-dis- crimination clauses covering marital status and sexual orientation.

a. In 1981, District 65 UAW Writers,

Editorial and Clerical Workers Union negotiated a compromise agreement with the Village Voice, under which the newspaper's unofficial policy of extending benefits to unmarried straight couples was extended to all employees. Martha McDonald, Domestic

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Partner Benefits Changes, Business & Health 11, 11-12 (Oct. 1990).

b. In 1986 employees of the city of Santa

Cruz, represented by the Service Employee International Union, brought the issue of domestic partner benefits to the bargaining table, and negotiated it into their contracts. Santa Cruz Action Network, Volume IX, No. 1 (1990).

1. Tax Law

Unlike health benefits provided to married partners, which are not taxable, health benefits provided to domestic partners are in most instances taxable to the employee. Although the IRS has not issued formal guidance on this issue, it has issued four private letter rulings reciting this principle. See Priv. Ltr. Rulings 90-34-048, 91-11-018, 91-09-060, 92-31-062. Because domestic partner benefits are taxed, qualified employees might be reluctant to take advantage of the benefits when they are available. One city found that the number of domestic partners choosing coverage under its health care plan dropped fifty percent when the city began withholding taxes on the imputed income attributable to the benefit.

a. Coverage:

Generally, benefits available to an individual in connection with someone else's employment are taxable to the employee. A significant exception to this rule is health care coverage for spouses or dependents. Under current tax rules, domestic partners generally would not qualify for this exclusion. Consequently, the employee will be taxed on the fair market value of the benefit.

An employee with a domestic partner might qualify for the exclusion if he or she can demonstrate that his or her domestic partner is either a common law spouse under state law or a dependent for tax purposes.

a. Other tax issues might arise if an

employer provides domestic partnership benefits in the following contexts: medical expense reimbursements, alternative health plans such as cafeteria plans or flexible spending accounts and COBRA.

A. Creating A Domestic Partner Benefits Plan

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Because lesbians and gay men may not marry their partners, some employers have concluded that it is unfair to deny benefits to lesbians and gay employees who are involved in long-term, "marriage-like" relationships.

Employers considering offering domestic partner benefits to their employees must determine: who will be eligible, what benefits will be offered, and how the benefits will be administered.

1. Who will be eligible

a. Opposite-Sex Partners

Most domestic partnership benefits plans offer coverage to same-sex and opposite-sex partners. See, e.g., Plan for Ben & Jerry's Homemade Inc., Levi Strauss & Co., City of San Francisco, Ziff-Davis Publishing, International Data Group, and Xerox Corp..

a. Same-sex partners

Some employers such as Home Box Office, Milbank, Tweed, Hadley & McCloy, Lotus Development Corp., Montefiore Medical Center, The Walt Disney Company and Stanford University, limit their plans to same-sex partners only.

The most common reason given for this policy is that opposite-sex partners have the option to marry and receive spousal benefits, while lesbians and gay men do not.

Another reason for limiting benefits to same- sex partners is cost. For example, while Stanford University's task force recommended extending benefits to opposite sex couples, it acknowledged that if resources allowed for an extension of benefits to only one of the two groups, a stronger case existed for benefits for same-sex than for opposite-sex couples.

i. The New York State Insurance

Department recently concluded that extension of domestic partner benefits to only same-sex couples would be lawful. In a letter date June 9, 1994, the Department cited as a rational basis for its conclusion of the fact that heterosexual partners are not prevented from receiving insurance benefits through the normal channels of marriage.

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Additionally, the Department recognized the cost of extending benefits to opposite sex partners. (Letter from Donna Freireich, Deputy Superintendent and General Counsel, State of New York Insurance Department, to Joseph Bress, Director, New York State Governor's Office of Employee Relations of 6/9/94, at 2-3.)

Nonetheless, heterosexual employees who are in stable and committed relationships arguably should receive benefits for their partners for the same reasons that lesbian and gay employees do.

In addition, unmarried opposite-sex couples in benefit plans along with same-sex couples avert charges of discrimination, and often make the proposal more palatable to unions, fellow employees and the public.

a. Children of partners

Many employers provide the same benefits to children of the domestic partners of employees as to children of spouses of employees.

1. What benefits to offer

The most significant benefit that can be offered to domestic partners is health insurance. However, many employers also extend other, less costly benefits, in addition to -- or in lieu of -- health insurance.

a. Health Insurance:

i. Large Employers

Because many insurance companies will not provide coverage for domestic partners, large employers that are self-insured often find it easier to offer domestic partner benefits than do small employers relying on outside insurance.

Nevertheless, larger employers might have trouble procuring stop-loss, minimum premiums or other excess coverage, or coverage through HMOs. HMOs have taken a wait-and-see attitude, to see if other carriers are willing to provide coverage. Linda M. Laarman, Employer Health Coverage for Domestic Partners--Identifying the Issues, 18 Employee Relations L.J. 567, 570 (1993)

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(hereinafter "Laarman").

i. Small employers

Small employers, which are typically not self-insured, might have a more difficult time obtaining coverage for domestic partners, especially if their carrier engages in individual underwriting (assessing the health of each potentially insurable individual).

Some small employers might opt to subsidize the cost of individual policies purchased by domestic partners--rather than adding them to the existing plan. Laarman, supra, at 570-71.

Buying pools might allow small employers to band together to purchase insurance thereby decreasing risk and reducing cost. Moreover, if "community rating" becomes mandatory, insurers will not be able to raise costs based on the risk associated with one individual. Laarman, supra, at 571.

Over time the experience of most companies has been that domestic partner coverage does not add significantly to the cost of providing benefits. Hence, insurers may become more willing to insure domestic partners.

a. COBRA Benefits:

Even though no employer is required by law to extend domestic partner benefits under COBRA, some employers voluntarily choose to offer COBRA-like benefits. Several entertainment companies, such as MCA, Inc., Viacom, Inc., Home Box Office and Warner Bros., have constructed plans that provide continuation of coverage to "spousal equivalents" and their dependents upon the termination or death of the employee.

a. Death/Bereavement Leave Policies:

In accordance with the policy behind recognizing the family like nature of non- married couples, extensions of death and/or bereavement leave to employees in the event of the death of a domestic partner, a parent or child of a domestic partner, is a fairly inexpensive method of acknowledging those relationships.

Apple Computer, Inc., for example, provides

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medical and dental benefits to same-sex partners only, but grants family leave and bereavement benefits for both same- and opposite-sex partners.

a. Family and Medical Leave:

Although the Family & Medical Leave Act of 1993, does not require that employers extend leave to employees to care for their unmarried domestic partners, (Interim Final Regulations reprinted in Daily Lab. Rpt. (BNA) Special Supplement at S-37 (June 4, 1993)), some employers grant family leave to employees to care for their domestic partners as well as the children of their partners.

1. How to Administer the Plan

a. Clearly Define Who is Covered

For example:

Two adults of the same sex [or two adults who are not legally married] who have chosen to share their lives in an intimate and committed relationship, reside together and share a mutual obligation of support for basic necessities of life.

a. Establish a Process for Verifying the


i. An employer may require that employees provide proof that (s)he lives with and is financially interdependent with the person for who domestic partnership benefits are being claimed.

ii. An employee may be asked to sign an affirmation which states that the employee and the domestic partner are:

(1) not related by blood to a degree of closeness that would prohibit legal marriage;

(2) mutually responsible for costs of basic living expenses;

(3) both at least the age of consent in the state in which they reside;

(4) in a committed relationship which has been in existence for at least one year,

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(5) residing together and intend to do so permanently; and,

(6) not married to anyone else.

iii. Documentation and Waiting Periods:

(1) Registration

An employer may require that an employee register as domestic partners with the county or city clerk if applicable.

(1) Waiting Period

An employer may require that benefits for a domestic partner do not become effective for 90 days or six months following the application for benefits.

A waiting period is a very practical, easily verifiable requirement, offering no difficult problems of proof or administrative inconvenience to either employers or insurance companies. It is one of the most effective ways to combat adverse selection--an employee will usually not try to obtain benefits for a sick friend or relative when he or she would be forced to wait a significant time before receiving coverage. Of course, a waiting period also means that significant health needs of a bona fide partner may go unmet.

a. Consider Tax Consequences

Employers should plan to withhold the fair market value of the cost of the benefit to the employee and comply with the tax code as outline above. See Section II(B)(6) supra.

iv. Employers should consider whether any

process they establish for verification is anymore burdensome for same-sex couples than for marries couples.

1. Other Legal Considerations:

a. Homosexual sodomy is still illegal in

half the states. Although there is no known case, theoretically an employer could be held liable for "aiding and abetting" illegal cohabitation. Linda M. Laarman, Employer Health Coverage for Domestic Partners-- Identifying the Issues, 18 Employee Relations L.J. 567, 578 (1993).

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b. Coverage of domestic partners might create unintended consequences for the employee in states such as California, where palimony is a possibility.

c. Employers should carefully consider

whether it is wise to offer domestic partnership benefits to only same-sex partners. It is possible that employees with opposite-sex domestic partners could maintain an action for marital status or sexual orientation discrimination under state and local ordinances.

I. Employment Discrimination Based on Sexual Orientation

A. Introduction

Sexual orientation discrimination law is one of the most rapidly growing and changing areas affecting employers. A national gay rights bill is currently pending in Congress. On the local level, the number of states, counties and cities with laws prohibiting such discrimination has multiplied rapidly in the last decade.

The effects of these laws can be significant for employers and employees alike. Employees have won substantial awards in sexual orientation discrimination cases, and employers have been forced to make substantial changes in their recruitment, hiring, education, and workplace conduct and policies.

A. Federal Law

No federal law prohibits discrimination on the basis of sexual orientation. Every circuit that has considered such cases under Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq., has held that the Title VII does not prohibit such discrimination.

1. "Sex" Does Not Include Sexual Orientation

The Civil Rights Act of 1964 was enacted primarily to bar discrimination on the basis of race. There is little legislative history regarding the prohibition on discrimination on the basis of sex.

Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977). In the absence of legislative history courts have relied on the 1972 Amendments to Title VII and the fact that all attempts to amend the Act to include sexual orientation have failed, concluding that the "because" language in the Act was intended to benefit women and to refer only to gender. Id. at 662-3

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(construing 42 U.S.C.  2000e-2(a)(1), (2)(19)). Consequently, courts have not interpreted "sex" as including sexual orientation.

a. DeSantis v. Pacific Tel. and Tel. Co.,

608 F.2d 327, 329-30 (9th Cir. 1979) ("[W]e conclude that Title VII's prohibition of `sex' discrimination applies only to discrim- ination on the basis of gender and should not be judicially extended to include sexual preference such as homosexuality") (footnotes omitted).

b. Dillon v. Frank, 1992 U.S. App. LEXIS

766, *11-12, 58 Empl. Prac. Dec. (CCH)  41332 (6th Cir. 1992) ("The circuits are unanimous in holding that Title VII does not proscribe discrimination based on sexual activities or orientation," because only dis- crimination "based on being male or female is prohibited by Title VII").

c. Williamson v. A.G. Edwards & Sons, Inc.,

876 F.2d 69, 70 (8th Cir. 1989) ("Title VII does not prohibit discrimination against homosexuals"), cert. denied, 493 U.S. 1089 (1990).

d. Blum v. Gulf Oil Corp., 597 F.2d 936,

938 (5th Cir. 1979) ("Discharge for homosexuality is not prohibited by Title VII or Section 1981").

e. Kelley v. Vaughn, 760 F. Supp. 161, 163

(W.D. Mo. 1991) ("However, the term 'sex' as it is used in the Act refers to gender, not to sexual orientation. Because homosexuality pertains to sexual preference, and not to gender, 'Title VII does not prohibit discrim- ination against homosexuals'") (citations omitted).

1. Other Arguments Under Title VII Rejected By

the Courts

A number of plaintiffs have attempted to borrow reasoning and arguments that have been successful in discrimination suits based on sex and race and apply those arguments to sexual orientation dis- crimination. Plaintiffs have claimed that gay men are more numerous than lesbians, that they are more likely to be discovered, and therefore, that discrimination on the basis of sexual orientation has a disparate impact on men. Plaintiffs also argued that by hiring women who prefer men as sexual partners while discriminating against men who prefer men as sexual partners, employers use

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different criteria for men and women. At least one plaintiff has argued that just as discrim- ination against employees because of the race of their friends may violate Title VII's proscription of race discrimination (see EEOC Dec. No. 71- 1902 (1971), 1971 EEOC LEXIS 73), discriminating against employees because of the gender of their friends constitutes impermissible sex discrim- ination. These arguments have so far been unsuccessful. See, e.g., DeSantis v. Pacific Tel. and Tel. Co., 608 F.2d 327 (9th Cir. 1979).

1. Gay and Lesbian Civil Rights Bills

There are currently two bills before Congress proposing to extend Title VII coverage to gay men and lesbians. These identical bills were simultaneously introduced in the Senate and the House of Representatives. See S. 2238, 103rd Cong., 2d Sess. (1994); H.R. 4636, 103rd Cong., 2d Sess (1994).

a. The proposed Employment Non-

Discrimination Act of 1994 ("the ENDA") would extend most of the protections of Title VII to individuals on the basis of sexual orientation. S. 2238 and H.R. 4636. The ENDA is modeled on Title VII with similar definitions, enforcement procedures, and posting requirements. The ENDA would be administered by the Equal Employment Opportunity Commission.

The ENDA prohibits discrimination in employment or employment opportunities based on lesbian, gay, bisexual, or heterosexual orientation, real or perceived.

While the ENDA would apply to private employers and state and federal employees, it would not apply to the military or religious organizations.

Unlike Title VII, there is no "disparate impact" claim available to a plaintiff under the ENDA. S. 2238  5.

The ENDA does not apply to the provision of employee benefits to an individual for the benefit of his or her partner, thus precluding mandatory benefits to same-sex couples.

The ENDA prohibits employers from adopting or implementing quotas on the basis of sexual orientation. S. 2238  6.

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a. Over the past two decades gay rights

advocates have repeatedly attempted to amend Title VII of the Civil Rights Act of 1964 to cover sexual orientation. See, e.g., H.R. 5452, 94th Cong., 1st Sess. (1975); H.R. 1454, 97th Cong., 1st Sess. (1982). None of these attempts has succeeded, but the current attempts seem likely to generate more attention due to large support already amassed in Congress in favor of the ENDA (29 Senators and 108 Representatives sponsored the ENDA).

In October 1995, President Clinton endorsed the ENDA and became the first sitting president to endorse a piece of major legislation to secure equal rights for gay men and lesbians. See Steven A. Holmes, Clinton Backs Bill to Protect Homosexuals from Job Bias, N.Y. Times, Oct. 20, 1995, at A1.

A. State, County and Municipal Laws

1. State and Local Laws Prohibiting Sexual

Orientation Discrimination

a. Eight states and the District of Columbia currently prohibit sexual orientation discrimination in private and public employment: California, Cal. Lab. Code  1101, 1102, 1102.1 (West 1993); Connecticut, Conn. Gen. Stat.  46a-60, 46a- 81a (1992); Hawaii, Haw. Rev. Stat.  378 et seq. (1992); Massachusetts, Mass. Gen. L. ch. 151b,  3(6), 4 (1989); Minnesota, Minn. Stat.  363.01; New Jersey, N.J. Rev. Stat.  10:5-4, 10:5-5, 10:5-12 (1992); Vermont, Vt. Stat. Ann. tit. 21,  495(a) (1992); Wisconsin, Wis. Stat. Ann.  111.31-.395 (West 1988); and District of Columbia, D.C. Code Ann.  1-2501, 1-2503, 1-2512 (1981).

b. In at least ten other states sexual

orientation employment discrimination bills are currently pending: Illinois, Maine, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Texas, Washington, and West Virginia.

c. Additionally, eleven states prohibit

discrimination based on sexual orientation in public employment only: Illinois, Louisiana, Maryland, Michigan, New Mexico, New York, Ohio, Pennsylvania, Rhode Island, and Washington.

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d. Over the past decade, numerous cities

and counties also have passed laws prohibiting discrimination by private employers on the basis of sexual orientation.

As of April 1993, there were at least 115 such laws including Atlanta, Ga., Ordinances 86-0-0190 & 86-0-0308; Boston, Mass., Code Tit. 12, Ch. 40; Chicago, Ill., Mun. Code, Ch. 199 et seq.; Philadelphia, Pa., Fair Prac. Ordinance, Ch. 9-1100 (1982); New York City, N.Y., N.Y.C. Admin. Code  8-102(20) (1991); Los Angeles, Cal., Code, Ch. IV, Mun. Code (1979); and San Francisco, Cal., Code, Art. 33  3301 (1992).

e. In October 1995, the United States Supreme

Court heard oral arguments in Romer v. Evans.

At issue in Romer is a Colorado constitutional provision adopted by popular referendum that bars all state and local government entities from providing legal protection against discrimination based on gay, lesbian or bisexual identity. Similar referendums have been offered in other states and localities, usually under the rubric of denying "special rights" to gays and lesbians. The Supreme Court's decision in Romer will have an effect on several pending cases and referendums. See, e.g., Equality Found. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995) petition for cert. filed (Aug. 10, 1995).

1. Coverage

a. In General

State statutes barring sexual orientation discrimination in private employment generally prohibit the consideration of sexual orientation in any employment decision including hiring, barring or discharging from employment, compensation, and terms, conditions, or privileges of employment. See, e.g., Conn. Gen. Stat.  46a-81c.

Most state statutes also prohibit employers from advertising for employees on the basis of sexual orientation and from asking job applicants questions regarding their sexual orientation. See, e.g., N.J. Rev. Stat.  10:5-12.

a. Definitions of Protected Class

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Definitions of the protected class vary, but they are generally broad. Most states define the prohibited discrimination as encompassing both actual and perceived homosexuality.

Therefore, it is no defense to an allegation of sexual orientation discrimination to show that the plaintiff is not actually gay. See, e.g., Cal. Lab. Code  1102.1.

Several states explicitly include heterosexuality and bisexuality in the protected class, making it illegal to prefer homosexuals. See, e.g., D.C. Code  1- 2502(28).

Minnesota, for example, has expanded the protected class to include anyone "having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness." Minn. Stat.  363.01.

a. Religious Groups

Most states exempt religious groups from sexual orientation employment discrimination laws. See, e.g., Wis. Stat. Ann.  111.337(2). (Note that in some states the exemption applies to all kinds of discrim- ination, not only sexual orientation. See, e.g., Mass. Gen. L. ch. 151B,  3(6) and 4.

i. Definitions

The standard definition includes any "religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised, or controlled by or in connection with a religious organization." Vt. Stat. Ann. tit. 21,  495(a)(7); see also Haw. Rev. Stat.  378-3(5). The groups exempted vary slightly from state to state, however, and the definitions tend to be vague and open to interpretation.

i. Effect of Exemption

Generally, employers meeting the criteria for the religious exemption may limit employment both to members of their own religion and to people whose employment is in accord with the tenets of the religion. For example, the Massachusetts Fair Employment Practice Act allows religious employers to give preference to employees of the same religion and to take

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employment actions "which are calculated by such organization to promote the religious principles for which it is established or maintained." Mass. Gen. L. ch. 151B,  1.

These statutes could be construed to allow religious employers whose religion disallows homosexuality to refuse to hire people on the basis of sexual orientation.

i. First Amendment Concerns

The First Amendment may require that religious organizations be exempted from sexual orientation discrimination laws even where they are not specifically exempted by state statute.

Courts analyzing such claims must first assess the extent to which the law imposes a burden upon the group's practice of religion by determining whether the group's objection to the law is truly religious, whether it is central to the religion, and whether the beliefs are sincere. Shelley Wessels, The Collision of Religious Exercise and Governmental Nondiscrimination Policies, 41 Stan. L. Rev. 1201, 1204-1205 (May 1989). The court must then decide whether the government's interest in antidiscrimination is a compelling interest that overrides the group's interest and, if so, whether the law is the least restrictive means to accomplish the state's interest. Id. at 1205.

Since sexual orientation discrimination laws are relatively new, there is little case law specifically concerning the conflict between the First Amendment and sexual orientation discrimination laws. In several old cases, the right of a religious organization to freedom of religion was found to outweigh any interests of the state or of gay male and lesbian plaintiffs.

1) In an early case, a California court found that forcing a church to violate its beliefs by hiring a gay organist would be a substantial burden on its right to free exercise of religion. Walker v. First Orthodox Presbyterian Church of San Francisco, 22 Fair Empl. Prac. Cas. (BNA) 762 (Cal. Super. Ct. 1980). The court held that the state's interest in protecting gay men and lesbians against discrimination did not outweigh the church's First

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Amendment interest and thus the San Francisco Police Code which prohibited discrimination in employment on the basis of sexual orientation did not apply to the church. Id.

2)3) Several years before Massachusetts enacted its statute prohibiting discrim- ination on the basis of sexual orientation, a state court found that the right of the Christian Science Church to free exercise of religion outweighed any rights that a lesbian employee might have. Madsen v. Erwin, 395 Mass. 715, 481 N.E.2d 1160 (1985).

In light of recent judicial and legislative support for civil rights on the basis of sexual orientation, however, courts may find that the state has a more compelling interest in protecting the rights of gay men and lesbians. Several recent cases support this prediction.

(1) In 1987 the D.C. Court of Appeals found that the government's compelling interest in eradicating sexual orientation discrimination includes "the fostering of individual dignity, the creation of a climate and environment in which each individual can utilize his or her potential to contribute to and benefit from society, and equal protection of the life, liberty and property that the Founding Fathers guaranteed to us all." Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 37 (D.C. App. 1987).

The court noted that the D.C. Council clearly regarded its interest in the matter as compelling and that sexual orientation has "most or all of the characteristics that have persuaded the Supreme Court to apply strict or heightened constitutional scrutiny to legislative classifications under the Equal Protection Clause." Id. at 36.

The court held that this compelling interest outweighed any slight burden Georgetown University would suffer in giving a group of gay law students equal access to benefits that it provided to all student groups.

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(1) In 1992 a federal court in New Jersey weighed the interests of a group of churches who claimed that New Jersey's Law Against Discrimination infringed on their First Amendment rights against the interests of New Jersey in protecting gay men and lesbians from discrimination. Presbytery v. Florio, 60 Fair Empl. Prac. Cas. (BNA) 805 (D.N.J.), aff'd without op., 983 F.2d 1052 (3d Cir. 1992).

In denying plaintiffs preliminary injunction, the court found that it should be deferential "to the legislature's efforts to establish the public's interest in protecting persons of a minority sexual orientation," and it warned of the harm which might be created if the state's exercise of its police power was impeded. 60 Fair Empl. Prac. Cas. at 808.

In recent developments in this case, the District Court dismissed plaintiffs' case finding it was not ripe, based on the state's affidavit that it would not enforce the Act against the institutional plaintiffs as churches or the pastor plaintiff in his capacity as a clergyman. The Third Circuit affirmed the dismissal against the institutional plaintiffs as not ripe, but reversed as to the individual pastor since the state has expressly refused to offer any assurances it will not prosecute the pastor if he violates the Act outside his church. Presbytery of N.J. of Orthodox Church v. Florio, 40 F.3d 1454 (3rd Cir. 1994).

(1) A California appellate court, however, recently upheld a Boy Scout troop's denial of a homosexual applicant to become a scoutmaster based on the organization's belief that homosexuality is unclean and immoral. Curran v. Mount Diablo Council of the Boy Scouts, 23 Cal. App. 4th 1307, 29 Cal. Rptr. 2d 58 (1994), review granted, 1994 Cal. LEXIS 3108 (June 2, 1994). The appellate court reversed the trial court's determination that the Boy Scouts were a business organization for purposes of the operative Unruh Act on civil rights.

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23 Cal. App. 4th at 1341-1345.

The court acknowledged the organization's firm stand against homosexuality and recognized the organization's First Amendment right to associate based on that stand. Id. at 1324-1329. Forcing the Boy Scouts to accept an applicant whose homosexual status is openly contrary to a basic tenet of the organization would violate the organization's constitutional right to choose the members of its association. Id. at 1326-1329. The California Supreme Court has granted review of this case.

1. Analysis of Selected State and Local Statutes

a. New York

The New York State Human Rights Law does not prohibit sexual orientation discrimination. Under 21 v. New York City, 65 N.Y.2d 344, 492 N.Y.S.2d 522 (1985); see also Petri v. Bank of New York Inc., 153 Misc. 2d 426, 582 N.Y.S.2d 608, 610 (Sup. Ct. N.Y. County 1992).

However a bill prohibiting sexual orientation discrimination in private employment in New York is pending in the state legislature. New York Assembly Passes Sexual Orientation Bill, Daily Lab. Rep. (BNA) No. 21, February 3, 1993, A-20.

Moreover, because many cities and counties in New York have such laws, approximately seventy percent of New York State residents live in jurisdictions where sexual orientation discrimination is outlawed. Lesbian/Gay Law Notes, January 1993.

i. New York City's Antidiscrimination Law

New York City has a sexual orientation antidiscrimination law resembling many state antidiscrimination laws. N.Y. City Admin. Code  8-107 (1986). It contains an exemption for religious employers and employers with fewer than four employees. N.Y. City Admin. Code  8-107.12, 8-107.16 (Supp. 1993). It also states that it does not permit or require employers to establish quotas or inquire into the sexual orientation

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of employees or job applicants. N.Y. City Admin. Code  8-107.16 (Supp. 1993).

(1) Discrimination Based on

Transsexuality Prohibited

While New York City's antidiscrimination law does not include "transsexuality" in its definition of "sexual orientation," the creation of a hostile work environment as a result of derogatory comments relating to the fact that, as a result of an operation an employee changed his or her sexual status, creates discrimination based on "sex" in violation of N.Y. City Admin. Code  8- 107. Maffei v. Kolaeton Industry, Inc., 626 N.Y.S.2d 391 (1995).

a. California

Although gay men and lesbians were not formally protected by legislation in California, beginning in 1979 the courts held that gay men and lesbians were entitled to certain protection under California law.

i. The first California case holding that gay men and lesbians are protected from dis- crimination was Gay Law Students Ass'n v. Pacific Tel. & Tel. Co., 24 Cal. 3d 458, 595 P.2d 592, 156 Cal. Rptr. 14 (1979). The court held that Sections 1101 and 1102 of the Labor Code, which bans employers from controlling or limiting the political activities or affiliations of their employees, extended to gay men and lesbians. Cal. Lab. Code  1101, 1102.

The court reasoned that "the struggle of the homosexual community for equal rights, particularly in the field of employment, must be recognized as political activity," and that any policy that penalizes people who are openly gay violates the Labor Code. Gay Law Students Ass'n, 24 Cal. 3d at 488, 595 P.2d at 610, 156 Cal. Rptr. at 32-33. The defendants' policy of discriminating "in particular against persons who identify themselves as homosexual, who defend homosexuality, or who are identified with activist homosexual organizations," the court found, was such a policy. 24 Cal. 3d at 488.

The California Attorney General later extended this holding and found that Sections 1101 and 1102 of the Labor Code prohibit dis-

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crimination in employment against employees on the basis of their sexual orientation. 69 Op. Att'y Gen. 80 (1986). The analysis utilized in Gay Law Students Ass'n has been followed in a number of cases.

(1) Shell Oil Company fired Jeffrey Collins after discovering a memo that he had printed on a company computer pres- cribing safe sex procedures for gay men to follow at a private party. Collins v. Shell Oil Co., 1991 Cal. App. LEXIS 783, 56 Fair Empl. Prac. Cas. (BNA) 440 (Cal. Super. Ct., App. Dep't 1991). The court found that in the context of the AIDS crisis in the San Francisco area at the time Collins' memo was printed, his action was a political activity protected under Sections 1101 and 1102 of the Labor Code and, therefore, Shell Oil could not dismiss him for writing the memo, even if it were entitled to do so under his employment contract.

The court awarded Collins $2,000,000 in punitive damages for his intentional infliction of emotional distress claim, $2,523,229 in economic damages on his contract causes of action, and $800,000 in compensatory damages under his tort causes of action.

(1) In Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227 (N.D. Cal. 1993), the law firm of Capps, Staples, Ward, Hastings and Dodson fired plaintiff after she was quoted in a newspaper article as saying that "being out" at the office would help other lesbian attorneys fight discrimination. Smedley claimed that her supervisor had previously instructed her not to discuss her sexual orientation at the firm's social events.

Applying Sections 1101 and 1102 of the California Labor Code, a federal district judge refused to grant summary judgment to the plaintiff, ruling that issues of fact remained regarding the defendant's policy, the reasons for its termination of plaintiff, and whether its actions violated the Labor Code.

Although not ruling definitively on the issues in this case, the court preliminarily explored the merits of the

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claims. It stated that preventing the plaintiff from discussing gay rights with other employees or ordering her to limit her activities in the gay community outside of the office might well constitute violations of Labor Code Sections 1101 and 1102. Id. at 1229- 1230. The court was skeptical, however, whether conversations regarding lesbianism with clients at the firm's social events were protected political activities.

i. State Legislative Developments

In 1992, the California legislature enacted a bill prohibiting sexual orientation discrim- ination in private employment. Cal. Lab. Code  1102.1 (effective Jan. 1, 1993).

The law exempts religious employers and employers with fewer than five employees from its prohibitions. It explicitly states that it does not invalidate any marital status classifications that are otherwise valid, does not supersede any existing rights that employers have to base their decisions on illegal conduct by employees, and does not require or allow the use of quotas. Id.

Although this law is too recent to have been interpreted widely by the courts, but there have already been at least five cases filed under it. See, Five Lawsuits Filed to Test New California Gay Rights Law, Daily Lab. Rep. (BNA) No. 4, Jan. 7, 1993, A-6:

(1) William Ballou has claimed that he was called "faggot bitch," instructed to harass apparently gay customers, and told to fire a gay employee. He was subsequently fired himself. Ballou v. Callendar, No. 710477-2 (Cal. Super. Ct., filed Jan. 4, 1993).

(2) Joe Magnano has claimed he was fired after one manager told him to leave the company because if he caught AIDS, it would be very expensive for the company and another manager said he could not work with homosexuals. Magnano v. Brown & Haley Co., No. 948424 (Cal. Super. Ct., filed Jan. 4, 1993).

Although not binding, the California Labor Commissioner has stated in a clarifying letter that the law is not limited to

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protecting individuals who are in fact gay. It also protects those gay men and lesbians who are perceived as straight and those straight individuals who are perceived as being gay.

A plaintiff must first exhaust all available administrative remedies before bringing an action for discrimination based on sexual orientation under Lab. Code  1101, 1102 and 1102.1. Liebert v. Transworld Systems, Inc., 32 Cal.App.4th 1693, 1699 (1995).

i. Local Legislative Developments

Many cities and counties in California have enacted local laws prohibiting sexual orientation discrimination in private employment. A state court recently found that these laws are preempted by the Fair Employment and Housing Act, (FEHA), Cal. Gov't Code  12900 et seq., which regulates discrimination in private employment. Delaney v. Superior Fast Freight, 14 Cal. App. 4th 590, 18 Cal. Rptr. 2d 33 (1993).

Although the FEHA does not bar sexual orientation discrimination, plaintiffs who would previously have sought a remedy under city and county laws can now turn to Section 1102.1 of the Labor Code. The Delaney court stressed that it was important to have a uniform system of antidiscrimination law throughout the state.

Plaintiff's attorneys have argued, however, that local laws provide remedies such as attorneys' fees and punitive damages not available under the Labor Code and, therefore, pre-emption is disadvantageous. California Gay Rights Ordinances Pre-empted by State Law, Court Rules, Daily Lab. Rep. (BNA) No. 61, Apr. 1, 1993, C-1.

i. Privacy Cause of Action

Employers who ask employees questions regarding sexual orientation may risk being sued on the basis of the employee's for their right to privacy under California law. Soroka v. Dayton Hudson Corp., 18 Cal. App. 4th 1200, 1 Cal. Rptr. 2d 77 (1991), review granted, 4 Cal. Rptr. 2d 180 (Cal. 1992), review dismissed, 24 Cal. Rptr. 2d 587 (Cal. 1993). In Soroka, the plaintiffs challenged the use of the Psychscreen employment application test which included questions

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designed to reveal the applicant's sexual orientation.

Questions included: "I am very strongly attracted by members of my own sex....I have often wished I were a girl. (Or if you are a girl) I have never been sorry that I am a girl....I have never indulged in any unusual sex practices....I am worried about sex matters." 13 Cal.App.4th at 197, 1 Cal.Rptr.2d at 82.

The employer asserted that the test measured emotional fitness and that employee quality improved after it began using the test.

The Court of Appeals held that this assertion was inadequate to show either a compelling interest or the necessary nexus between the employee's duties and the invasion of privacy and ruled that the practice of asking the questions of this sort violated Labor Code Sections 1101 and 1102. Id.

In July 1993, the employer agreed to pay over two million dollars to settle the case.

i. Wrongful Discharge in Violation of Public Policy

In addition to the protections under Lab. Code  1101, 1102 and 1102.1, a California court of appeals has found a non-statutory, common law claim sounding in tort for a violation of a fundamental public policy for discrimination based on sexual orientation. Liebert v. Transworld Systems, Inc., 32 Cal.App.4th 1693, 1703-04 (1995).

a. District of Columbia

The District of Columbia banned sexual orientation discrimination in private employment in 1977. D.C. Code Ann.  1-2501 et seq. The D.C. Human Rights Act is a fairly standard act with the customary exemption for religious employers. (See D.C. Code Ann.  1-2503(b). There are, however, several distinct features in the D.C. law.

i. Outlaws Preference for Homosexuals

The D.C. Human Rights Act defines sexual orientation as "male or female homosexuality, heterosexuality and bisexuality, by preference or practice." D.C. Code Ann.  1- 2502(28). Consequently, it bars both dis-

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crimination against and preferential treatment for homosexuals.

(1) In a recent case interpreting this provision, a nurse at Howard University Hospital claimed that she was fired because she complained of a hostile work environment fostered by lesbian co- workers and supervisors. Green v. Howard University, No. 91-CA04194 (D.C. Super. Ct. Dec. 4, 1992).

While a jury accepted her contention and awarded her $140,000, the Court of Appeals reversed. In Howard University v. Green, 652 A.2d 41 (1994), the District of Columbia Court of Appeals found there was nothing in the record to suggest that the University was alerted that plaintiff actually complained of sexual orientation discrimination. In addition, the court noted in a footnote that "although heterosexuals are and should be covered [by D.C.'s Human Rights Act], the main purpose of the sexual orientation provision was to ensure that homosexuals enjoy equal rights previously denied to them." Id. at 49 n. 12.

The jury, accepting her contention, awarded her $140,000 and ordered Howard University either to reinstate her or to offer her an equivalent position. Court Sustains Jury Award for Alleged Lesbian Conspiracy to Fire Heterosexual, 1993 Daily Lab. Rep. (BNA) No. 3, Jan. 6, 1993, A-6.

i. Prohibits Unintentional Discrimination

The D.C. statute provides that "[a]ny practice which has the effect or consequence of violating any of the provisions of this chapter shall be deemed to be an unlawful discriminatory practice." D.C. Code Ann.  1-2532.

The D.C. Court of Appeals has interpreted this provision as prohibiting unintentional discrimination that has a disproportionate impact on a protected class and cannot be justified for a nondiscriminatory reason. Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 29 (D.C.App. 1987). The statute thus incorporates the disparate impact analysis

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established by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971).

i. Transsexuality Not Protected

D.C.'s Human Rights Act does not prohibit discrimination based on an individual's status as a transsexual, because "transsexuality" is not included in the Act's definition of "sex." Underwood v. Archer Management Services, Inc., 857 F.Supp. 96, 98 (D.D.C. 1994).

a. Miscellaneous State Cases

i. Pennsylvania

In an usual case in Pennsylvania, DeMuth v. Miller, 652 A.2d 891 (Pa. Super. Ct. 1995), an employer filed suit against a former employee for violating a covenant not to compete clause in the employee's contract. The covenant was triggered when the employee was fired for cause: being a homosexual. There was no dispute that the employee was fired because he was gay. The superior court of Pennsylvania affirmed the jury verdict in favor of the employer. The court avoided the question whether it was enforcing contractual "private" discrimination, by holding that the money damages awarded the employer were for violation of the non-compete clause, and not because the defendant was gay. The court also held that the non-compete clause did not violate policy because discrimination based on sexual orientation is "legal" in Pennsylvania.

Demuth raises the question whether court enforcement of private contracts that facially discriminate against gay men and lesbians constitutes state action for constitutional analysis. See Shelly v. Kraemer, 334 U.S. 1 (1948) (judicial enforcement of private contracts, where such enforcement furthers private discrimination, constitutes state action and may result in a denial of equal protection).

i. Minnesota

In Hanke v. Safari Hair Adventure, 512 N.W.2d 614 (Minn. App. 1994), the court held that harassment based on an employee's sexual orientation provides an employee with good cause to quit if the harassment creates an offensive working environment and the

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employer knows or should know of the harassment, but fails to take timely and appropriate action. Plaintiff, therefore, was not disqualified from receiving unemployment compensation benefits.

A. Remedies Under Other Legal Theories

In addition to Title VII and state and local antidis- crimination laws, there are potential remedies available to gay men and lesbians dismissed by private employers in jurisdictions recognizing theories of dismissals which contravene public policy and implied contractual obligations.

1. Public Policy Violation

Courts have found that certain dismissals are against public policy and thus subject employers to potential liability. Sexual Orientation and the Law, supra, at 1577. They are most likely to do so where the public policy is contained in a specific statute. Id. It is possible that courts too will find that dismissals of gay men and lesbians violate a public policy favoring privacy, particularly where the right to privacy is contained in the state constitution. Id.

1. Implied Contractual Provisions

Courts have found that nondiscrimination statements in employee handbooks create implied contractual provisions with which employers must comply.

As more employers develop and disseminate nondis- crimination policies, this is an increasingly important area. A recent study of members of the Society for Human Resource Management found that sixty-three percent of employers had policies regarding nondiscrimination on the basis of sexual orientation, half of which were written. Lesbian/Gay Law Notes at 26 (April 1993).

In one reported case involving an employee who was dismissed for his homosexuality, an individual contract claim was rejected by the Fifth Circuit based on Texas law. Joachim v. AT&T Info. Sys., 793 F.2d 113 (5th Cir. 1986). However, Texas law has subsequently changed so it is possible that the Fifth Circuit would decide the same claim differently today. Sexual Orientation and the Law, supra, at 1578 n.156.

A. Public Employees: Constitutional Standards

Because their employer is the government, public

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employees have constitutional protections unavailable to private employees, including the rights to due process and equal protection under the Fifth and Fourteenth Amendments and the right to freedom of expression under the First Amendment. These protections may be overcome, however, by other governmental interests.

1. Due Process

a. Procedural Due Process

When government employees have a property interest in their jobs or when the dismissal violates a protected liberty interest, government employees cannot be dismissed from their jobs without due process. Perry v. Sindermann, 408 U.S. 593, 599 (1972); see also Sexual Orientation and the Law, supra, at 1574.

i. Property Interest

A property interest exists when "rules and understandings [officially] promulgated and fostered [might create a] legitimate claim of entitlement to continued employment." Perry v. Sindermann, 408 U.S. at 602. In jobs where government regulations state that homosexuality is a ground for dismissal, gay male or lesbian employees are often unable to show an expectation of continued employment, and thus a property interest. See, e.g., Beller v. Middendorf, 632 F.2d 788, 805 (9th Cir. 1980) (citing Berg v. Claytor, 436 F. Supp. 76, 81 (D.D.C. 1977), vacated, 591 F.2d 849 (D.C. Cir. 1978)) ("Plaintiff has admitted to having performed homosexual acts while in the Service. Having admitted there was cause for dismissal, plaintiff's expectation of continued employment has been extinguished. Thus he had no property interest...."), cert. denied, 454 U.S. 855 (1981); Rich v. Secretary of the Army, 735 F.2d 1220, 1226 (10th Cir. 1984); Doe v. Gates, 981 F.2d 1316, 1320 (D.C. Cir. 1993).

When a governmental employer cannot establish a clear policy against employing homosexuals, however, plaintiffs who can point to evidence creating an expectation of continued employment may prevail. For example, a gay mailroom employee of the FBI was able to show that he had a reasonable expectation of continuing his employment as long as his work remained satisfactory. Ashton v. Civiletti, 613 F.2d 923, 928 (D.C. Cir. 1979).

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i. Liberty Interest

A liberty interest is implicated if a dismissal seriously damages an individual's standing or associations in his/her community or impose a stigma that would foreclose his/her ability to take advantage of other employment opportunities.

The issue arises in cases where gay men and lesbians are "outed" by their former employers or where they are fired on the basis of their sexual orientation in such a way that they are unattractive to future employers. See, e.g., Beller, 632 F.2d at 806 (plaintiffs discharged from the Army on account of their sexual orientation asserted that they received the stigma of "unfitness" for retention, and that permanent Navy files contained the reason for their discharge); Rich, 735 F.2d at 1226 (plaintiff who was honorably discharged from the Army on the basis of his sexual orientation and fraudulent entry, claimed that the Army's dissemination of information precluded him from obtaining unemployment benefits and civilian employment).

Courts have rejected plaintiffs' assertions that their liberty interests have been violated in the course of dismissals for homosexuality on several grounds. First, they have rejected the contention that the government actually made the employee's sexual orientation public, finding that the plaintiffs admitted their homosexuality themselves or consented to the employer's release of the information. Beller, 632 F.2d at 807 (stressing that plaintiffs admitted to performing homosexual acts); Rich, 735 F.2d at 1227 (emphasizing that plaintiff publicized his sexual orientation and consented to the Army's release of information); Childers v. Dallas Police Dep't, 513 F. Supp. 134, 145 (N.D. Tex. 1981) (any harm that plaintiff suffered came from his own admission of his sexual orientation).

Secondly, when plaintiffs are discharged honorably or the reasons for the discharge were kept secret, courts conclude that the plaintiffs were not actually damaged. Rich, 735 F.2d at 1226, n.5 (liberty interest not violated by an honorable discharge from the Army); Beller, 632 F.2d at 806-07 (liberty interest not violated where reasons for

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honorable discharge were not indicated on papers likely to be examined by future employers).

a. Substantive Due Process

i. Arbitrary and Capricious

Some courts have ruled that employees may not be dismissed from public employment on the grounds of homosexuality where there is no "nexus" between homosexuality and suitability for employment. See, e.g., Norton v. Macy, 417 F.2d 1161, 1164 (D.C. Cir. 1969); benShalom v. Secretary of Army, 489 F. Supp. 964, 976-77 (E.D. Wis. 1980). Such dismissals, the courts find, are arbitrary and capricious and thus violate substantive due process.

i. Privacy

Plaintiffs have also invoked the protections of substantive due process by charging that the homosexual conduct prohibited by military or other government regulations is protected as an aspect of the fundamental right of privacy. See, e.g., Beller, 632 F.2d at 807.

Courts have often rejected these arguments, concluding that even if homosexual conduct is protected, important governmental interests outweigh the protections. See also Beller, 632 F.2d at 811 (citing government interests in protecting culture of the military, maintaining discipline, protecting integrity of the recruiting process, ensuring the acceptance of military personnel by people in other countries); Childers, 513 F. Supp. at 142 (stressing police department's interest in maintaining discipline and protecting the integrity of the police department).

In 1986 the Supreme Court ruled that homosexual sexual activity is not protected under the fundamental right of privacy. Bowers v. Hardwick, 478 U.S. 186 (1986). Relying on this decision, a number of courts have rejected substantive due process challenges to dismissals on the basis of sexual orientation on the grounds that there simply is no protection for homosexual sexual activity. See, e.g., Woodward v. United States, 871 F.2d 1068, 1074-75 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990).

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1. Equal Protection

a. Suspect Class

The issue whether gay men and lesbians are a protected class has divided the judiciary. Although a number of lower courts have ruled that gay men and lesbians are protected and that discrimination against them must be subjected to heightened scrutiny, most of these rulings have been overturned on appeal.

See, e.g., Ben-Shalom v. Marsh, 703 F. Supp. 1372, (E.D. Wis. 1989), rev'd, 881 F.2d 454, 463 (7th Cir. 1989); High-Tech Gays v. Defense Indus. Sec. Clearance Office, 668 F. Supp. 1361 (N.D. Cal. 1987), rev'd in part, vacated in part, 895 F.2d 563, 571 (9th Cir. 1990); Jantz v. Muci, 759 F. Supp. 1543, 1551 (D. Kan. 1991), rev'd and remanded on other grounds, 976 F.2d 623 (10th Cir. 1992); Watkins v. U.S. Army, 847 F.2d 1329, 1352-53 (9th Cir. 1988), aff'd on other grounds, 875 F.2d 699, 705 (9th Cir. 1989) (en banc). No Circuit Court of Appeals has ruled that gay men and lesbians are entitled to heightened equal protection scrutiny.

As in the substantive due process area, many courts read Bowers as precluding the possibility that gay men and lesbians are entitled to heightened scrutiny under equal protection analysis. See, e.g., Woodward v. U.S., 871 F.2d at 1068, 1075-76 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 102-03 (D.C. Cir. 1987).

a. Rational Basis Review

Even if sexual orientation discrimination is not subject to heightened scrutiny, courts must still apply the rational basis standard in reviewing the government's action. Swift v. United States, 649 F. Supp. 596, 602 (D.D.C. 1986) ("the government may not dis- criminate against homosexuals for the sake of discrimination, or for no reason at all"). Many courts have allowed discrimination by the military, by agencies granting security clearances, and by public schools to survive rational basis review because they believe the government has special interests.

Several courts have recently applied "active rational relationship scrutiny" to sexual orientation discrimination, forcing the

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government, especially the military, to show a rational relationship between the discrim- ination and the government's interest, instead of merely assuming its existence. See, e.g., Pruitt v. Cheney, 963 F.2d 1160, 1165-1166 (9th Cir. 1991), cert. denied, 113 S. Ct. 655 (1992); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 575 (9th Cir. 1990); Dubbs v. CIA, 769 F. Supp. 1113 (N.D. Cal. 1990); Buttino v. FBI, 1992 U.S. Dist. LEXIS 4659 (N.D. Cal. 1992).

Applying this standard of review, one district court has invalidated sexual orientation discrimination by the military under rational basis scrutiny. Cammermeyer v. Aspin, 1994 U.S. Dist. LEXIS 7289, *47-*48 (W.D. Wash. June 1, 1994) ("[t]he Government, for its part, has failed to offer any evidence showing that its justifications are based on anything but prejudice."). The Ninth Circuit allowed an Army Reserve officer's challenge to sexual orientation discrimination to survive a defense motion for summary judgment. Pruitt, supra (denying summary judgment to defendant Secretary of Defense on the grounds that he must establish that his policy of discrimination on the basis of sexual orientation has a rational basis).

1. First Amendment Right to Freedom of Speech

Dismissals of gay and lesbian employees often stem from statements that the employees have made. If such statements touch on a matter of "public concern," it will be protected speech for which employees cannot be dismissed. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). If the speech does touch on public concerns, the courts must balance the employee's interest in free speech against the state's interest in regulating its employees. Id. The issue arises often with military employees and public school teachers.

Courts have generally ruled that where employees merely stated that they are homosexual, they are making an admission of personal, not public, interest, and their speech is not protected. See, e.g., Johnson v. Orr, 617 F. Supp. 170, 175 (E.D. Cal. 1985) (calling plaintiff's First Amendment claim specious because her assertion of her homosexuality was a mere statement of fact), aff'd without op., 787 F.2d 597 (9th Cir. 1986); Pruitt v. Cheney, 963 F.2d 1160, 1164 (9th Cir. 1991) (plaintiff was dismissed not for the content of

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her newspaper statement that she was gay but rather for being a lesbian); Rowland v. Mad River Local Sch. Dist., 730 F.2d 444, 449 (6th Cir. 1984)(plaintiff's statements regarding her sexual preference were not protected speech, however, because she was speaking only in her own interest), cert. denied, 470 U.S. 100 (1985). Justice Brennan criticized this approach, concluding that a debate is raging regarding the rights of gay men and lesbians and that once a person asserts his or her homosexuality he or she is "necessarily and ineluctably that debate" and his or her statements are thus a matter of public concern. Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009, 1012 (1986) (Brennan, J. dissenting).

When employees advocate gay rights instead of asserting their sexual orientation, their speech is generally protected. Examples include:

a. A state statute prohibiting teachers

from "advocating, soliciting, imposing, encouraging or promoting public or private homosexual activities" was found constitutionally overbroad and violative of the First Amendment. National Gay Task Force v. Board of Educ., 729 F.2d 1270, 1272 (10th Cir. 1984), aff'd, 470 U.S. 903 (1985).

b. A university lecturer's statements

regarding homosexuality that were publicized in a series of newspaper articles, was protected speech. Aumiller v. University of Del., 434 F. Supp. 1273, 1302 (D. Del. 1977).

c. An assistant county treasurer was fired

after he sought to leave work to address the local Commissioners Court regarding homosexuality. The court found that his desire to speak constituted protected activity. Van Ooteghem v. Gray, 654 F.2d 304 (5th Cir. 1981), cert. denied, 455 U.S. 909 (1982).

Some courts, however, have viewed activism in pursuit of gay rights not as protected speech under the First Amendment but as conduct which government employers are free to prohibit if it reflects badly on them. McConnell v. Anderson, 451 F.2d 193, 196 (8th Cir. 1971), cert. denied, 405 U.S. 1046 (1972).

A. Public Employees: Government Interests

1. Teachers

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In the realm of public schools, the government asserts a wide range of interests to overcome rational basis review and teachers' free speech protections. Some courts have held that when schools employ openly gay men and lesbians, they are tacitly forced to approve of their behavior. McConnell v. Anderson, 451 F.2d 193, 196 (8th Cir. 1971), cert. denied, 405 U.S. 1046 (1972). Courts have held that the school's interests in avoiding such tacit approval overcomes plaintiff's First Amendment rights. Id. at 196. Other courts have ruled that teachers have an obligation to go out of their way to hide their private lives and that openly gay men and women violate this obligation. Acanfora v. Board of Educ. of Montgomery County, 359 F. Supp. 843 (D. Md. 1973), aff'd on other grounds, 491 F.2d 498 (4th Cir. 1974).

Some courts uphold dismissals under school immorality provisions. Gaylord v. Tacoma Sch. Dist., 88 Wash. 2d 286, 559 P.2d 1340, cert. denied, 434 U.S. 879 (1977) (en banc) (holding homosexuality immoral despite repeal of sodomy statute). The difficulty of defining morality makes this approach particularly troublesome. For example, the Oregon Supreme Court twice remanded a case to an administrative court with instructions on how to interpret "immorality." Ross v. Springfield Sch. Dist., 294 Or. 357, 657 P.2d 188 (1982); Ross v. Springfield Sch. Dist., 300 Or. 507, 716 P.2d 724, 728 (1986).

Some courts have rejected the classification of immorality as broad and vague and have instead looked at "fitness to teach." Board of Educ. of Long Beach v. Jack M., 19 Cal. 3d 691, 696, 566 P.2d 602, 604, 139 Cal. Rptr. 700, 702 (1977). These courts adopt for state employment the due process rational relationship test that the D.C. Circuit developed for federal civil service employment. Norton v. Macy, 417 F.2d 1161, 1164 (D.C. Cir. 1969). Under this standard the California court prevented the dismissal of a gay male teacher who participated in public, criminal homosexual behavior when the school was unable to show that he was unfit to teach. Id.; see also Morrison v. State Bd. of Educ., 1 Cal. 3d 214, 461 P.2d 375, 82 Cal. Rptr. 175 (1969) (disallowing dismissal of gay male teacher who participated in nonpublic homosexual behavior).

1. The Military and Local Police Departments

Many courts have found that discrimination by the military survives rational basis review because of the special needs of the military. See, e.g., Dronenburg v. Zech, 741 F.2d 1388, 1398 (D.C. Cir.

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1984); Woodward v. U.S., 871 F.2d 1068, 1077 (Fed. Cir. 1989). Enumerated needs include maintaining discipline, order, morale, and trust among service members, aiding in recruiting and retention of personnel, shoring up the rank and command system, and preventing security breaches. Dronenburg, 741 F.2d at 1398.

Many of the arguments supporting government interests that have been used for the military have also been used by local police departments. See, e.g., Childers v. Dallas Police Dept., 513 F. Supp. 134 (N.D. Tex. 1981). Recently, however, several police departments have settled cases brought under local laws.

a. In February 1993 three police officers

who charged that they had been forced to leave the Los Angeles Police Department because of harassment by other officers settled their case for $700,000. Bettina Boxall, L.A. Settles Officers' Suit, L.A. Times, February 11, 1993, at A1. As part of the settlement the defendants agreed to engage in active recruitment of gay officers, to eliminate recruitment questions that would reveal sexual orientation, to prohibit harassment of gay and lesbian officers, to train officers in how to deal with the gay and lesbian community and gay and lesbian co- workers, and to screen out homophobic job applicants. Id.

b. In late 1992 the San Diego County

Sheriff's Department settled a lawsuit brought by a lesbian employee. As part of the settlement the department agreed to ban sexual orientation discrimination and to conduct sensitivity training. Lesbian/Gay Law Notes, January 1993.

1. Security Clearance

The CIA and the FBI contend that they have important interests in denying security clearances to gay men and lesbians who, they assert, are especially susceptible to blackmail. For example, in 1990 the Department of Defense convinced the Ninth Circuit that homosexuals are vulnerable because they are targeted for blackmail by the KGB. High Tech Gays v. United States, 895 F.2d 563, 575-77 (9th Cir. 1990). Courts have even held that it is constitutional to deny security clearances to openly gay men and women because they are subject to blackmail to protect their partners. Padula v. Webster, 822 F.2d 97, 104 (D.C. Cir. 1987). Recently, however, a district

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judge questioned the continuing validity of such discrimination "in light of the post-High Tech Gays demise of the Soviet Union and the uncertain future, if any, of the Soviet Secret Police." Buttino v. F.B.I., 1992 U.S. Dist. LEXIS 4659, at *25 (N.D. Cal. 1992).

I. Sexual Orientation Harassment

A. Overview

Conditioning job benefits or continued employment on the granting of sexual favors is discrimination on the basis of sex and is prohibited by Title VII. An employee will be able to sustain a claim for quid pro quo harassment if the employee suffers a tangible job detriment as a result of refusing to submit to the sexual demands of a supervisor. See Koster v. Chase Manhattan Bank, 687 F. Supp. 848, 861 (S.D.N.Y. 1988).

Hostile environment harassment, however, does not require a showing of tangible job detriment. Instead, an employee who claims a hostile work environment may demonstrate that requests for unwelcome sexual favors, and/or other unwelcome verbal or physical conduct of a sexual nature was sufficiently severe and pervasive that it interfered with the employee's ability to fully perform his or her job. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986); Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 63 (2d Cir. 1992).

A. Harassment of Men and

Women is Prohibited

The quid pro quo sexual harassment analysis has been applied primarily to women who are harassed by male supervisors. A number of courts, however, have held that a male employee also has a cause of action if he is harassed by a female supervisor. Showalter v. Allison Reed Group, Inc., 767 F. Supp. 1205 (D.R.I. 1991), aff'd on other grounds, 984 F.2d 4 (1st Cir. 1993); Parrish v. Washington Nat'l Ins. Co., 1990 U.S. Dist. LEXIS 13934 (N.D. Ill. 1990); E.E.O.C. Compliance Manual  615.2(b)(1) ("A man as well as a woman may be the victim of sexual harassment, and a woman as well as a man may be the harasser."). Because the purpose of Title VII is to prohibit gender based discrimination, both men and women are considered a "protected class" under Title VII.

At least one court has found that it is not a defense to sexual harassment between members of the opposite sex that the harasser is homosexual. See, e.g., Alphonse v. Omni Hotels Management Corp., 634 So.2d 836 (La. App. 1994).

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A. Same-Sex Harassment

Recently, the Equal Employment Opportunity Commission ("E.E.O.C.") and Federal courts have begun to recognize that employees who are harassed by supervisors and co- workers of the same sex are also protected by Title VII. If the harassment by a same-sex supervisor is based on treatment due to the employee's gender, the courts have held that that is discrimination based on sex. If, however, the harassment is due to the individual employee's actual or perceived sexual orientation, that harassment is not considered actionable under Title VII.

The E.E.O.C., while recognizing that sexual harassment can occur between individuals of the same sex, distinguishes between harassment based on gender and harassment based on sexual orientation:

The victim does not have to be of the opposite sex from the harasser. Since sexual harassment is a form of sex discrimination, the crucial inquiry is whether the harasser treats a member or members of one sex differently from members of the other sex. The victim and the harasser may be of the same sex where, for instance, the sexual harassment is based on the victims's sex (not on the victim's sexual preference) and the harasser does not treat employees of the opposite sex the same way.

EEOC Comp. Man. (BNA)  615.2(b)(3) (June 1987) (emphasis in original).

A. Same-Sex Harassment:

Quid Pro Quo Cases

If a gay or lesbian supervisor demands sexual favors from an employee of the same sex, the courts more likely than not will extend Title VII protection to the individual. If, for example, a male supervisor demanded sexual favors from a male employee, the employee would have a claim under Title VII. In that situation, the employee would have been "selected" or singled out for special treatment, because he was male.

Therefore, he would have been discriminated against because of his gender. A number of federal courts have held that same-sex quid pro quo harassment is proscribed by Title VII.

1. Joyner v. AAA Cooper Transp., 597 F. Supp.

537 (M.D. Ala. 1983), aff'd, 749 F.2d 732 (11th Cir. 1984): A male employee alleged that a male manager made a sexual advance toward him, rejected the advance and reported the incident. The

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employee alleged that due to his rejection of the manager's advance he was denied recall rights following a lay-off. The court held that same-sex harassment violates Title VII and the employee had established that he was subjected to quid pro quo harassment due to his sex.

2. Wright v. Methodist Youth Servs., 511

F. Supp. 307 (N.D. Ill. 1981): A male employee of a social services organization alleged that he was terminated after he refused the advances made by his male supervisor. The court held that the employee had stated a claim under Title VII because the supervisor made a demand upon a male employee which would not have been made on a female employee. The harassment, therefore, was gender based.

3. See also Barbour v. Department of Social

Servs., 198 Mich. App. 183, 497 N.W.2d 216 (1993) (finding that a male employee who had alleged that his male supervisor had made advances towards him had stated a claim for sexual harassment under Michigan State discrimination law).

4. See also Parrish v. Washington Nat'l Ins.

Co., 1990 U.S. Dist. LEXIS 13934 (N.D. Ill. 1990) ("If a plaintiff complains of unwelcome homosexual advances, the offending conduct is based on the employer's sexual preference and necessarily involved the plaintiff's gender, for an employee of the non-preferred gender would not inspire the same treatment. Thus unwelcome homosexual advances, like unwelcome heterosexual advances, are actionable under Title VII.").

5. Prescott v. Independent Life and Acc. Ins.

Co., 878 F.Supp. 1545, 1550-51 (M.D. Ala. 1995): Congress chose to use the unmodified word "sex" when referring to the prohibited discrimination in Title VII. Had Congress intended to prevent only heterosexual sexual harassment, it could have used the term "member of the opposite sex" in Title VII. The gender of the person who requests sexual favors from a subordinate employee, therefore, is irrelevant under Title VII.

6. Boyd v. Vonnahmen, 1995 U.S. Dist. LEXIS 7542

(S.D. Ill. March 29, 1995) (declining to "read Title VII as applicable only to heterosexual sexual harassment" in a quid pro quo case).

A. Same-Sex Harassment:

Hostile Work Environment

While Federal courts remain unified in rejecting claims of harassment based on sexual orientation, there is an

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emerging split among Federal courts whether to recognize same-sex harassment.

1. Courts Holding Same-Sex Harassment Not


a. Hopkins v. Baltimore Gas & Elec. Co., 871 F.Supp. 822 (D.Md. 1994): Allegations by a male employee that his male supervisor sexually harassed him over a period of seven years by creating a hostile work environment were rejected by a federal district court in Maryland. The court held that Title VII does not protect the victim of sexual harassment by a supervisor or co-worker of the same gender. The fundamental concept of Title VII, the court opined, is to make certain that persons of one gender are not treated as being inferior to persons of the other gender. The male supervisor, therefore, could not have treated the male employee as inferior because of his gender, since they are both men.

b. Garcia v. Elf Atochem North America, 28

F.3d 446 (5th Cir. 1994): "Harassment by a male supervisor against a male subordinate does not state a claim under Title VII even though the harassment has sexual overtones. Title VII addresses gender discrimination." See also, Oncale v. Sundowner Offshore Services, Inc., 1995 U.S. Dist. LEXIS 4119 (E.D. La. March 24, 1995); Myers v. City of El Paso, 874 F.Supp. 1546 (W.D. Tex. 1995).

c. Benekritis v. Johnson, 882 F.Supp. 521

(D.S.C. 1995) (same-sex harassment "is not a viable claim under Title VII").

d. Goluszek v. Smith, 697 F.Supp. 1452

(N.D. Ill. 1988): Sexual harassment against male in male-dominated environment not actionable under Title VII because action would be inconsistent with Title VII's goal of remedying discrimination and correcting imbalance of power.

e. NOTE: Even in courts that have found

same-sex harassment claims outside of the scope of Title VII, a plaintiff may still have a claim for retaliatory discharge. This conclusion draws support from the statutory mandate 42 U.S.C.  2000e-3(a), which extends a retaliatory discharge claim to anyone participating in proceedings under Title VII -- even if the court later concludes that the plaintiff's claim is not cognizable as a

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matter of law. See, e.g., Benekritis v. Johnson, 882 F.Supp. 521 (D.S.C. 1995); Hopkins v. Baltimore Gas & Elec. Co., 871 F.Supp. 822 (D.Md. 1994).

2. Courts Holding Same-Sex Harassment Actionable

a. Nogueras v. University of Puerto Rico,

1995 U.S. Dist. LEXIS 8958 (D. P.R. June 13, 1995): Allegations by a female employee that her female supervisor and a female consultant sexually harassed he by touching her, making sexually-charged remarks, inviting plaintiff to engage in sexual activity and other similar incidents. Court rejected defendants argument that Title VII does not same-sex harassment. "It is clear . . . from the plain language of Title VII, that same-sex harassment is an unlawful employment practice. . . . Defendants' gender is irrelevant."

b. EEOC v. Walden Book Co, 885 F.Supp. 1100

(M.D. Tenn. 1995): Same-sex sexual harassment is actionable under Title VII because it would be "untenable to allow reverse discrimination cases but not same-sex sexual harassment cases to proceed under Title VII." "Sexual harassment of a subordinate by a homosexual supervisor of the same sex is an adverse employment action that the subordinate would not have faced but for his or her sex."

c. Lamar v. NYNEX Service Co., 1995 WL

421726 (July 11, 1995 S.D.N.Y.): Analyzing merits of same-sex hostile work environment case under the assumption that such conduct would be actionable under Title VII if "sufficiently sever or pervasive to alter the conditions of [the victim's] employment."

d. Pritchett v. Sizeler Real Estate

Management Co., 1995 U.S. Dist. LEXIS 5565 (E.D. La. April 25, 1995): Notwithstanding the Fifth Circuit's dicta in Garcia, the District Court held that "[t]o deny a claim of same gender sexual harassment allows a homosexual supervisor to sexually harass his or her subordinates either on a quid pro quo basis or by creating a hostile work environment, when a heterosexual supervisor may be sued under Title VII for similar conduct."

e. McCoy v. Johnson Controls World

Services, 878 F.Supp. 229 (S.D. Ga. 1995) ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 80---------------------------------------

(harassment that would not have occurred but for the victimized employee's sex was harassment "based upon sex" regardless of the harasser's gender).

A. Same Sex Harassment:

Hostility Based on Sexual Orientation Does not Create Environmental Harassment Claim

The creation of an environment that is hostile to gay or lesbian employees, i.e., harassment that affects an employee because the employee is a gay man or lesbian, is not considered gender-based discrimination under Title VII and is not prohibited.

1. Dillon v. Frank, 1992 U.S. App. LEXIS 766, at

*2-3, 58 Empl. Prac. Dec. (CCH)  41332 (6th Cir. 1992): A male postal worker filed a Title VII claim based on sex, alleging that he was verbally and physically harassed by co-workers due to the co-workers' belief that he was gay. The harassment which persisted over a period of three years consisted of verbal comments directed toward the employee such as "fag," "Dillon sucks dicks," "Dillon gives head" and escalated to a physical assault on the employee. Although finding that the harassment was "sexual" in nature, the Sixth Circuit held that harassment based on the sexual orientation or perceived sexual orientation of an employee is not actionable under Title VII. The court noted, however, that if the employee could show that he had been treated differently than a lesbian employee, he might have an actionable claim as he would then be singled out for unique treatment not because he was gay but because he was a gay man. 1992 U.S. App. LEXIS 766, at *27 n.5

2. Carreno v. IBEW, Local No. 226, 54 Fair Empl.

Prac. Cas. (BNA) 81 (D.C. Kan. 1990): A male employee divorced his wife and began living with another man. As a result, his co-workers and supervisors verbally and physically harassed the employee over the course of a year. The employee eventually refused to report to work and alleged that he had been constructively discharged as a result of the harassment. The Kansas District Court held that the employee had not established a prima facie case under either Title VII or state discrimination laws as the discrimination complained of was based on the employee's sexual orientation rather than on his gender.

3. Similarly, in Barbour v. Department of Social

Servs., 198 Mich. App. 183, 497 N.W.2d 216 (1993), the Michigan Court of Appeals held that under Michigan state law, an employee who was harassed

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by co-workers who believed that a male employee was gay failed to state a claim for sex based dis- crimination.

4. In Fox v. Sierra Development Co., 876 F.Supp.

1169 (D. Nev. 1995), heterosexual male employees alleged hostile work environment saturated with homosexual references. Court held they did not allege any discriminatory hostility and thus failed to state a cause of action under Title VII.

The alleged hostility was not against men or masculinity and was not hostile on the basis of sex or gender but only hostile to a person's notions of sexuality and its proper role or place.

This is not actionable under Title VII.

5. Vandeventer v. Wabash Nat'l Corp., 867

F.Supp. 790 (N.D. Ind. 1994): Harassment by males against male homosexual not actionable under Title VII because Title VII aimed at gender-biased atmosphere and no evidence that male harassed because he was male.

A. Harassment of Both Sexes

A few courts have considered the question of whether a supervisor who harasses members of both genders equally violates Title VII.

1. Barnes v. Costle, 561 F.2d 983, 990 (D.C.

Cir. 1977): In considering an allegation of sexual harassment of a female employee by her male supervisor, the court stated that if a gay supervisor of either gender had harassed an employee of either gender, the employee would receive Title VII protection. In either case, the court reasoned, the employee would have been treated differently because of his/her gender. The court added that "[i]n the case of a bisexual superior, the insistence upon sexual favors would not constitute gender discrimination because it would apply to male and female employees alike." Id. at 990 n.55.

2. Chiapuzio v. BLT Operating Corp., 62 Fair

Empl. Prac. Cas. (BNA) 707 (D.C. Wyo. 1993): In denying a motion for summary judgment the court described a supervisor who harassed both male and female as an "'equal opportunity' harasser whose remarks were gender-driven." Id. at 710. The court distinguished between same-sex and bi-sexual harassment in that the supervisor was not suggesting that he wanted to perform sexual acts with the male employees, but rather his harassment took the form of impugning the male employees'

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sexual prowess.

3. But see, Ryczek v. Guest Services, Inc., 877

F.Supp. 754 (D.D.C. 1995): Criticizing Barnes in dicta. The court recognized the anomaly of the "particularly unspeakable cad" who would escape Title VII liability simply because he or she harasses both men and women. Court also questioned the "troubling possibility" of having the litigants "debate and juries determine the sexual orientation of Title VII defendants.

A. Local Laws Prohibiting Sexual

Orientation Harassment

Currently, eight states and many cities have municipal ordinances explicitly proscribing discrimination based on sexual orientation. In those jurisdictions, employees may have a cause of action for hostile environment sexual harassment based on sexual orientation.

1. In Mogilefsky v. Superior Court, 20 Cal. App.

4th 1409 (1993), the male plaintiff alleged that his male employer sexually harassed him by repeatedly inviting him to his hotel room, making sexually explicit comments after watching pornographic films with him, and referring to plaintiff in a profane and degrading way. Id. at 1412. The court held that a cause of action can be stated for same-sex harassment, whether based on quid-pro-quo or hostile environment theories. Id. at 1418.

2. The Supreme Court, New York County noted, in

the context of a hostile environment sexual harassment suit, that because discrimination by New York City agencies or representatives against gay men and lesbians is explicitly prohibited by New York Executive Order No. 4 (1978), "anti-gay or homophobic remarks or actions . . . may also constitute prohibited discrimination." Rudow v. New York City Comm'n on Human Rights, 123 Misc. 2d 709, 474 N.Y.S.2d 1005, 1014 n.11 (Sup. Ct. N.Y. County 1984), aff'd, 109 A.D. 2d 1111, 487 N.Y.S.2d 453 (1st Dep't 1985).

3. In Fry's Food Stores of AZ, Inc., 99 Lab.

Arb. Rep. (BNA) 1161 (1992), the arbitrator upheld the company's discharge of an employee who verbally harassed a gay co-worker. The arbitrator reasoned that because Tucson, Arizona had an ordinance prohibiting discrimination on "sexual or affectional preference," the company was justified in its severe punishment of the employee.

4. A recent opinion letter from the California

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Labor Commission indicates that it interprets the California state statute prohibiting employment discrimination on the basis of sexual orientation (Cal. Lab. Code  1102.1) to prohibit hostile environment harassment based on an employee's sexual orientation. (Op. Let. dated March 8, 1993).

5. In Matthews v. Superior Court, 34 Cal.App.4th

598, 603 (1995), the court held that a heterosexual employee could state a claim for hostile work environment created by homosexual supervisors based on California's Fair Employment and Housing Act. Citing Mogilefsky, the court held that sexual harassment by a member of the same sex constitutes gender harassment under the FEHA.

1995 Steefel, Levitt & Weiss and Proskauer Rose Goetz & Mendelsohn

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