Gender Nonconformity versus Sexual Orientation (Status vs. Conduct)
Prowel illustrates one method that courts have used to examine sex stereotyping
claims made by people who identify as LGB or are thought to be. The U.S.
Court of Appeals for the Seventh Circuit acknowledged in a now-vacated
opinion that courts have "tried, with limited success, to figure out how to draw
the line between sexual orientation discrimination, which cannot form the basis
of a legal claim based on sex stereotyping, and gender nonconformity
discrimination, which can." Refer to Hively v. Ivy-Tech Comm. Coll., 830 F.3d
698, which was vacated by 853 F.3d 339, 346 & n.2 (7th Cir. 2017) (en banc)
for more reasons. For example, some courts have dismissed sex discrimination
claims if they find that the charges of discrimination based on sexual orientation
are more compelling than those claiming that sex stereotyping was the basis of
the prejudice. 167 F. Supp.3d 598, 618-21 (S.D.N.Y. 2016), rev., 852 F.3d 195,
201 (2nd Cir. 2017), for example, Christiansen v. Omnicom Group, Inc. Despite
calling the plaintiff sissy, the harasser displayed numerous instances of anti-gay
prejudice. Despite the fuzziness of claims of sexual orientation discrimination
and sex stereotyping, other courts have drawn a limit. In Burnett v. Union RR
Co., No. 17-1012017 WL 2731284 (W.D. Pa. June 26, 2017), for example, it
was determined that the plaintiff had adequately claimed that he had been
"subjected to a hostile work environment because of gender nonconformity"
after being called "fag," "butthole Burnett," and "hot butt fagot" on multiple
occasions, as well as being asked if he "was taking it up the ass."
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
However, a number of courts have refused to attempt drawing boundaries in this
area, concluding that it is impracticable. To put it another way, discrimination
against LGB people is illegal under Title VII as their sexual orientation is
gender nonconforming in and of itself. Winstead v. Lafayette County Board of
County Commissioners, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016) is one
example. "[G]ay people are breaking the ultimate gender stereotype—
heterosexual attraction—just by identifying as gay.... The termination of a
"traditionally masculine" homosexual man for being gay is just as much a result
of sex as the termination of a "effeminate" gay man. In Terveer v. Billington, 34
F. Supp.3d 100 (D. D.C. 2014), the employer's motion to dismiss was denied
because the plaintiff claimed to be "a homosexual male whose sexual
orientation is not consistent with the Defendant's perception of acceptable
gender roles." In Heller v. Columbia Edgewater Country Club, 195 F. Supp.2d
1212, 1224 (D. Ore. 2002), the employer's motion for summary judgment was
denied because a jury could conclude that the plaintiff, a woman, was harassed
and fired for not acting in a way that was appropriate for a woman; the plaintiff
was attracted to other women, and her supervisor thought she should date men.
However, compared to gender conforming LGB people, LGB plaintiffs who
defy gender norms in their appearance, mannerisms, and behavior at work seem
to have more success pursuing sex discrimination claims based on sex
stereotypes. See e.g., Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254
(11th Cir 2017) (holding that Title VII does not protect against sexual
orientation discrimination, but holding that the plaintiff should be allowed leave
to amend her complaint to allege that her “decision to present herself in a
masculine manner” resulted in adverse employment actions); Christiansen v.
Omnicom Group, 852 F.3d 195, 201 (2nd Cir. 2017) (holding that plaintiff’s
gender stereotyping allegations stated a Title VII claim; plaintiff “alleges that he
was perceived by his supervisor as effeminate and submissive and that he was
harassed for these reasons”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir.2006) (holding that Price Waterhouse was concerned with gender
nonconforming characteristics that were readily demonstrable in the workplace,
such as appearance or mannerisms; employees are not protected merely because
they are perceived to be homosexual); Nichols v. Azteca Restaurant Enters.,
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price
Waterhouse, harassment based on the perception that a male employee was
effeminate occurred because of sex); see also Brian Soucek, Perceived
Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing trend among the
courts: “In cases involving sexuality, plaintiffs tend to win if and only if they
fail to conform to stereotypes in ways seen at work.”).
