ThinkProgress was kind enough to bring to our attention a rather insignificant case of discrimination that could hold another underpinning with regards to arguments about same-sex marriage, and the center on Title VII’s protections against sex-based discrimination.
Most of the arguments made against homosexuality center around sex/gender biases and prejudices. Title VII of the Civil Rights Act of 1964 was suppose to be a poison pill to kill the law, but in the end, it passed. Title VII prevents discrimination based upon sex. Jason Koren is suing his former employer, Ohio Bell Telephone Company, over unfair treatment because he is gay, his homosexuality lead to his termination, and among his complaints are that his former supervisor Kim Miceli refused to acknowledge that he took his husband’s surname because she “did not recognize same-sex marriages.”
Judge James Gwin sided with Koren and agreed that it was discrimination based upon Koren’s sex:
Koren’s position is that changing his name upon marriage was a non-conforming “behavior” that supports his gender discrimination claim under a Price Waterhouse sex-stereotyping theory. Ohio Bell disagrees and attempts to frame Koren’s claims as a simple attempt “to bootstrap protection for sexual orientation into Title VII” as prohibited by Vickers.
The Court agrees with Koren: homosexual males do not “by definition, fail to conform to the traditional gender norms” by changing their surname upon marriage. And here, Koren chose to take his spouse’s surname—a “traditionally” feminine practice—and his co-workers and superiors observed that gender non-conformance when Koren requested to be called by his married name. Vickers does “not suggest that [a plaintiff’s] claim fails merely because he has been classified . . . as a homosexual. Rather, [the] claim fails [when the plaintiff] has failed to allege that he did not conform to traditional gender stereotypes in any observable way at work.”
Koren has alleged just such a failure to conform. And he says that Miceli “harbored ill-will” because he changed his name but that she would not have done so if a female employee had changed her name. Koren testified that Miceli refused to call him by his married name, that Miceli went out of her way to call him by his previous last name, and that Miceli informed him that she did not recognize same-sex marriages. And that ill-will, Koren says, resulted in seven unexcused absences and, ultimately, his termination. Accordingly, there is a “genuine dispute as to material fact[s],” and summary judgment is inappropriate on Koren’s sex-stereotype theory.
This is not likely the last word on this, but it is part of a growing trend of rulings using Title VII to get around a lack of protections for LGBT individuals. In many ways, it uses gender non-conformity to block discrimination. One trans woman used this law to get around attempts to force her to wear male clothing at work. The judge noted that the law actually forbids companies from discriminating against men if they wish to wear skirts at work.
At the heart of the battles over LGBT rights is the Religious Right’s attempts to push gender stereotypes and gender conformity on people.