Case Study:
DeSantis v. Pacific Telephone & Telegraph Co., Inc. Strailey v. Happy Times Nursery School, Inc. Lundin and Buckley v. Pacific Tel. & Tel. Co., Inc. 608 F.2d 327 (9th Cir. 1979)
Gays and lesbians brought these actions claiming their employers and former employers discriminated against them in employment decisions because they were gay and lesbian. The Court of Appeals dismissed the cases, holding that Title VII does not include protection for gays and lesbians within its prohibition of discrimination on the basis of gender.
Choy, J.
Employee Strailey, a male, was fired by the Happy Times Nursery School after two years as a teacher. He alleged he was fired because he wore a small gold ear-loop to school before the beginning of the school year. DeSantis, Boyle and Simard, all males, claimed that Pacific Telephone & Telegraph (PT&T) impermissibly discriminated against them because they were gay. DeSantis alleged he was not hired when a PT&T supervisor concluded he was gay. Boyle was continually harassed by his coworkers and had to quit to preserve his health after only three months because his supervisor did nothing to alleviate this condition. Finally, Simard was forced to quit under similar conditions after almost four years of employment with PT&T, but he was harassed by his supervisors as well. In addition, his personnel file has been marked as not eligible for rehire, and his applications for employment were rejected by PT&T in 1974 and 1976. All three alleged that PT&T officials have publicly stated that they would not hire gays and lesbians. EEOC rejected all claims for lack of jurisdiction. Employees argue first that the district courts erred in holding that Title VII does not prohibit discrimination on the basis of affinity orientation. They claim that in Case2 prohibiting certain employment discrimination on the basis of “gender,” Congress meant to include discrimination on the basis of affinity orientation. They add that in trial they could establish that discrimination against such employees disproportionately affects men and that this disproportionate impact and correlation between discrimination on the basis of affinity orientation and discrimination on the basis of gender requires that affinity orientation be considered a subcategory of the gender category of Title VII. Congress has not shown any intent other than to restrict the term gender to its traditional meaning. Therefore, this court will not expand Title VII’s application in the absence of Congressional mandate. The manifest purpose of Title VII’s prohibition against gender discrimination in employment is to insure that men and women are treated equally, absent a bona fide relationship between the qualifications for the job and the person’s gender. Based on similar readings of the legislative history and the principle that “words used in statutes are to be given their ordinary meaning,” the EEOC has concluded “that when Congress used the word ‘sex’ in Title VII, it was referring to a person’s ‘gender’ and not to ‘sexual practices.” EEOC Dec. No. 76-75 (1976) Employment Practice Guide (CCH) section 6495 at 4266. We conclude that the prohibition against gender discrimination does not include same gender affinity orientation. Employees further argue that recent decisions dealing with disproportionate impact require that discrimination against gays and lesbians fall within the purview of Title VII. They contend that recent decisions like Griggs v. Duke Power Co. establish that any employment criterion that affects one gender more than the other violates Title VII. They quote from Griggs at 431, that “what is required by Congress is the removal of artificial, arbitrary and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classifications.” They claim that they can prove that discrimination against gays and lesbians disproportionately affects males both because of the greater likelihood of an employer discovering males with such orientation compared to females similarly situated. Assuming that the employees can otherwise satisfy the requirements of Griggs, we do not believe that Griggs can be applied to extend Title VII protection to those in employees’ position. In finding that the disproportionate impact of educational tests on blacks violated Title VII when they were not job related, the Supreme Court in Griggs sought to effectuate a major congressional purpose in enacting Title VII: protection of blacks from employment discrimination. Our objective is to ascertain the congressional intent and give effect to the legislative will. Congress did not intend to protect affinity orientation and has repeatedly refused to extend such protection. Employees now ask us to employ the disproportionate impact decisions as an artifice to “bootstrap” Title VII protection for this group under the guise of protecting men generally. This we are not free to do. Adoption of this bootstrap device would frustrate congressional objectives, not effectuate congressional goals as in Griggs. It would achieve by judicial “construction” what Congress did not do and has consistently refused to do on many occasions. We conclude that the Griggs disproportionate impact theory may not be applied to extend Title VII protection to affinity orientation. Employees next contend that recent decisions have held that an employer generally may not use different employment criteria for men and women. They claim that if a male employee prefers males, he will be treated differently from a female who prefers males. They conclude that the employer thus uses different employment criteria for men and women and violates Phillips v. MartinMarietta Corp., 400 U.S. 542 (1971). We must again reject employees’ efforts to “bootstrap” Title VII protection for their group. While we do not express approval of an employment policy that differentiates according to affinity orientation, we note that, whether dealing with men or women, the employer is using the same criterion: it will not hire or promote a person who prefers sexual partners of the same gender. Thus the policy does not involve different decisional criteria for the genders. Employees argue that EEOC has held that discrimination against an employee because of the race of the employee’s friends may constitute discrimination based on race in violation of Title VII. They contend that analogously discrimination because of gender of the employee’s sexual partner should constitute discrimination based on gender. They have not, however, alleged that the employers have policies of discriminating against employees because of the gender of their friends. That is, they do not claim that the employers will terminate anyone with male (or female) friends. They claim instead that the employees discriminate against employees who have a certain type of relationship—i.e., a same-gender affinity orientation—with certain friends. As noted earlier, that relationship is not protected by Title VII. Thus, assuming it would violate Title VII for an employer to discriminate against employees because of the gender of their friends, the employees’ claims do not fall within the purported rule. AFFIRMED.
Q1. The court said that the employer was discriminating against the parties because of their choice of sexual partners. Notwithstanding the way the issue has historically been treated, does this seem to be a valid basis for judging an applicant for employment? Explain.
Q2. Do you agree with the parallels that the parties attempted to draw between race discrimination and discrimination on the basis of affinity orientation? Discuss.
Q3. What do you think of the employees’ argument that Title VII should be interpreted to include affinity orientation since it can be shown that affinity orientation discrimination has a disproportionate impact on men and is, essentially, a type of gender discrimination? Explain.
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format.