I am a lesbian but am not out at work. I have been having problems lately at my job. Last week my boss told me I had to start “dressing more appropriately” for the job. When I asked what that meant, she said to wear more makeup and skirts. I’m scared I’m going to lose my job. If they fire me can I sue for discrimination?
Being fired for not wearing makeup strikes the same sense of injustice as being fired for being lesbian or gay. It’s a serious issue for many.
As the statistics go, you can be fired for being LG or B in 31 states and in 37 for being T, including New York (outside of NYC). Assuming you live outside these few states, you have little recourse if you allege that you were fired based on sexual orientation.
You could attempt to file under Title VII of the Civil Rights Act and allege you were wrongfully terminated because you refused to comply with restrictive and gendered stereotypes about your appearance, but you might have difficulties as sexual orientation is not covered under Title VII. Your argument is that you were fired not because of sexual orientation, per se, but rather based gender non-conformity. It’s what our moms fought for in the ‘60s and ‘70s so they could wear jeans to school and business suits that had “slacks” to the jobs they were newly entering. The problem is, there’s a lot of overlap, as we now understand, between gender and sexuality.
The newest efforts to carve out protection around these issues is a federal bill just voted out of committee called ENDA (Employment Non-Discrimination Act) which would outlaw discrimination based on sexual orientation. In its current form it excludes the T.
Interestingly, it is the T that would potentially protect you in this situation. Another reason to fight for the inclusion of T in the laws we pass aside from protecting vulnerable rights for transgender folks, is that without it, we will all ultimately be reduced down to not wearing enough makeup.
Whether you identify as lesbian, butch, femme, androgynous, trans, all or neither, intolerance to gender non-conformity is big trouble and ends up erasing basic feminist and humanitarian principles of allowing freedom and individuality.
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*This column is not a consultation with an attorney and should in no way be construed as such or as a substitute for such consultation. Anyone with legal issues or concerns should seek the advice of her own attorney.