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Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U.L. Rev. 715 (2014), available at SSRN.

I’m a sucker for a contrarian perspective, and that’s certainly what one finds in Brian Soucek’s recent article. It’s pretty conventional wisdom—although often decried—that the safest bet for identity expression in the workplace is by assimilating to the expectations of the majority. Indeed, there’s a whole critical literature devoted to the “covering” and “working identity.”

Looking Gay Enough challenges that proposition—at least where sexual orientation is concerned and at least in terms of what identity strategy maximizes an employee’s prospects of prevailing in a lawsuit. Professor Soucek, of course, is writing about the Never Never Land that current judicial interpretations of Title VII have created: it’s not illegal to discriminate on the basis of sexual orientation but it is illegal to discriminate against individuals on the basis of failure to conform to gender stereotypes (except for the ultimate stereotype that individuals are sexually attracted to persons of the opposite sex).

Calling this rule incoherent is charitable, but its existence creates serious problems in workplaces and in the courts—typically in the harassment context—in trying to sort out what, exactly, is the basis of the discrimination. For employers, tolerating either form of discrimination has its risks because it’s often impossible to know ex ante where the line will be drawn and because the spread of legislation adding sexual orientation to the list of protected characteristics suggests a need to police any such conduct.

Federal courts, however, continue to struggle with distinguishing the indistinguishable, and this is where Professor Soucek comes in. His article, not surprisingly, views the rule stated above as “conceptually untenable” but, somewhat startlingly, he also claims it to be “descriptively incorrect.” The real distinction being drawn, he argues, is between how violations of stereotypes are perceived:

If you look or act sufficiently “gay” at work, you might currently find protection from discrimination in at least half of the nation’s courts of appeals. If, however, your coworkers or employers simply know or think you are gay, you are not only unprotected under federal law, but your claim is that of a “bootstrapper” trying to force sexual orientation into Title VII against the will of Congress.

In other words, “contrary to popular wisdom and most academic theorizing,” appearances in employment-discrimination law in this context not only matter but “take precedence over knowledge, and one’s look and affect receive more protection than one’s sexual identity.” Maybe even more surprising, the piece contends that behavior at work does not have to mimic opposite sex characteristics: “gender nonconformity does not equal opposite-gender conformity. Traits not perceived as feminine may be perceived nonetheless as violating masculine stereotypes, and vice versa.”

As is always true with a Jot, I cannot hope to capture all of this interesting article in the space allotted. It is firmly grounded in a detailed study of two cases raising the issues and an empirical examination of a data set of 117 federal court opinions. All well worth the read. But, as a contrarian, I found most interesting the tension between those empirical findings and much of the writing in our discipline—Robert Post’s invisibility paradigm, Kenji Yoshino’s “covering” theory (Soucek finds both his “descriptive doctrinal account and prescriptive theory” challenged by the article’s empirical findings), and the almost universal recognition—again, much decried—that the courts disfavor appearance-based claims.

The question why courts should have drawn to a bizarre distinction also fascinates Professor Soucek, but he avoids “psychologizing about judges.” I tend to agree: since courts are trying to distinguish the indistinguishable, any line they draw will be bizarre.

But Soucek is concerned about the effects of an appearance/cognition distinction, fearing it might “reinforce the homophobia the courts presumably hoped to counteract.” He sketches several potential problems, but I was most taken with the resultant “incentives for gay employees to flaunt.” Not only does this heighten inauthenticity concerns but “[b]y incentivizing workers to flaunt and requiring employers to attend to gay-coded appearance and affect, courts reinforce the perceived differences separating gay and straight employees.”

There’s obviously a lot in this piece to think about, and it’s a must-read for those of us interested in what’s happening at the sex/sexual orientation border.

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Cite as: Charles A. Sullivan, Is Standing Out the Best Way to Fit In?, JOTWELL (August 11, 2014) (reviewing Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U.L. Rev. 715 (2014), available at SSRN),