Excerpted From: Mary Beth Heinzelmann, The “Reasonable Lesbian” Standard: a Potential Deterrent Against Bias in Hostile Work Environment Cases, 12 Law and Sexuality: A Review of Lesbian, Gay, Bisexual and Transgender Legal Issues 337 (2003) (179 Footnotes) (Full Document)


Taken as a whole, state statutes prohibiting discrimination in the workplace based on one's sexual orientation are in a state of infancy. While some states enacted legislation throughout the 1990s to prohibit discrimination in the area of employment based on sexual orientation, other states have repealed such legislation. This type of state legislation provides a basis for relief for those who have been harassed or discriminated against in the workplace based on their sexual orientation. However, a basis for relief is unavailable under federal legislation, such as Title VII, which does not recognize sexual orientation as a protected class. Although courts have recognized the reprehensible nature of targeting individuals for harassment based on their actual or perceived sexual orientation, this has not altered the interpretation of federal legislation.

Even if Title VII or the proposed Employment Non-Discrimination Act prohibited sexual orientation discrimination, it is not clear what forms of harassment would be prohibited by federal law. For example, the United States Supreme Court has recognized hostile work environment claims as a form of sexual harassment under Title VII, but judicial interpretation has added to the ambiguity in determining what behavior is actionable. Aside from what conduct constitutes a valid claim of hostile work environment harassment, courts have differed on what type of standard should be utilized when evaluating these claims. Some courts have adopted a “reasonable person” standard, while other courts have adopted a “reasonable woman” standard.

It is perhaps no surprise, then, that state courts drawing upon Title VII case law to interpret legislation prohibiting sexual orientation discrimination would encounter similar issues. For example, in a recent case, Muzzy v. Cahillane Motors, Inc., the Supreme Judicial Court of Massachusetts upheld the trial court's use of a “reasonable woman of lesbian orientation” standard when evaluating a hostile work environment claim brought by a lesbian plaintiff against a lesbian defendant. The court reasoned that plaintiff's counsel agreed to this instruction before it was read to the jury and that the instruction did not give “rise to any prejudice, bias, or unfairness.”

This Article examines when courts should utilize a “reasonable lesbian” standard in hostile work environment cases. Part II of this Article provides a brief background on the recognition of hostile work environment claims as a form of sexual harassment and the evolution of the “reasonable woman” standard to explain in detail why “reasonable victim” standards have created problems under Title VII. Part III of this Article explains why a “reasonable lesbian” or a “reasonable gay man” standard may be appropriate in some cases. It provides an overview of society's attitudes and perceptions of lesbians and gay men. It will also discuss how these perceptions may lead to anti-gay harassment in the workplace. Part IV of this Article explains why the use of a “reasonable lesbian” standard is inappropriate in other cases. It provides an analysis of the similarities and differences in violence experienced by lesbian and heterosexual women. It also analyzes the sensitivity levels of lesbians and heterosexual women to certain conduct, specifically the display of pornography, which may constitute evidence of a hostile work environment.

This Article concludes, in Part V, by asserting that courts should include a plaintiff's sexual orientation as part of a jury instruction for hostile work environment cases only in limited situations, in which (1) the plaintiff's actual or perceived sexual orientation is significantly relevant to his or her perspective of the alleged behavior of the defendant and (2) when the benefits of including a plaintiff's sexual orientation outweigh the risks of potential juror bias. It discusses how, in certain situations, the inclusion of a plaintiff's sexual orientation in a jury instruction may assist in overcoming prejudicial attitudes of homosexuality.

[. . .]

The use of a “reasonable lesbian” or “reasonable gay man” standard, in some cases, allows jurors to consider how lesbians and gay men may perceive certain comments and behavior in the workplace as a prelude to physical and/or sexual violence. Such a standard or jury instruction that includes a plaintiff's sexual orientation may assist lesbians and gay men, in certain situations, by providing a deterrent against juror bias. It is still legal, however, for employers to discriminate against employees based on their sexual orientation in a majority of states. Thus, the “decision” of whether to “come out” at work involves potentially painful options. Lesbian and gay men who “come out” at work risk not only losing their financial stability, but also a job that provides them with personal fulfillment, while lesbian and gay employees who do not “come out” are faced with the daily task of having to deny part of who they are and possibly the person whom they love.

J.D. candidate 2003, Hofstra University School of Law.