by Race in the Workplace special correspondent Erica Mauter

University of Arkansas-Little Rock law professor Zachary Kramer has posted a law review article on the Social Science Research Network entitled Heterosexuality and Title VII. The abstract:

There is a double standard at work in employment discrimination cases. While courts frequently reject otherwise actionable sex discrimination claims brought by lesbians and gay employees on the grounds that sexual orientation is not protected under Title VII, no court has ever ruled this way in a case brought by a heterosexual employee. What explains this double standard? The conventional wisdom is that heterosexual employees do not face discrimination on the basis of their sexual orientation. In this Article, I offer a different explanation, one that is rooted in the cultural invisibility of heterosexuality in our society. Because we tend not to think of heterosexuals as having a sexual orientation, courts are unable to see when an employee’s sex discrimination claim implicates her heterosexuality. As a result, heterosexual employees are simply not at risk of losing their sex discrimination claims because of their sexual orientation. Thus heterosexuality and homosexuality are not similarly situated under Title VII. Whereas lesbian and gay employees are burdened by their sexual orientation in employment discrimination law, heterosexual employees are, in effect, privileged by theirs.

This concept is not new and different. We’re all familiar with the various types of privilege (and all the versions of Peggy McIntosh’s Unpacking the Invisible Knapsack), right? Let’s read it again.

Because we tend not to think of heterosexuals as having a sexual orientation, courts are unable to see when an employee’s sex discrimination claim implicates her heterosexuality. As a result, heterosexual employees are simply not at risk of losing their sex discrimination claims because of their sexual orientation.

The world of law review is a little different from the world of sociology. So maybe it is revolutionary for someone to point this out. Farther along in the paper:

The lesson of [the] case is that an employee’s sexual orientation can swallow up an otherwise actionable claim of sex discrimination. Even though [the] Title VII claims were based on her sex and her gender-nonconformity, the court concluded that [she] was trying to bootstrap protection for sexual orientation into Title VII by framing discussion targeted at her sexual orientation as a claim of discrimination based on her gender-nonconformity.

The exact mechanism by which so many discrimination claims get tossed is an interesting reflection on our cultural mindset towards sexual orientation. It might all be a moot point if sexual-orientation were already considered a protected class under Title VII (the employment discrimination section of the Civil Rights Act of 1964) from the standpoint of a legal outcome, but it wouldn’t change the interpretation of the facts as they were presented.

(via Workplace Prof Blog)

See also: Unpacking the Invisible Knapsack heterosexual privilege version, Christian privilege version, male privilege version. Enh, just google it.