Ryan Pacifico was a successful currency trader for one of the largest retail banking concerns in the world. But his success was short-lived after his boss found out Ryan was a vegetarian, and after suffering from constant harassment, he was suddenly dismissed. Was he fired because he is a vegetarian, and can he sue?
In a new paper titled "Of Meat and Manhood," Arizona State law professor Zachary A. Kramer argues that he should be able to sue his employer under the sex discrimination law established in Title VII of the Civil Rights Act of 1964. Why sex discrimination? Because the Supreme Court allows employees to sue for gender-stereotyping, and Pacifico's story makes a strong case that he was mocked by his boss for not living up to his standards of what a "real man" ought to be—namely, a meat-eater.
In his paper, Kramer begins with a primer on employment discrimination law. Under Title VII, there are five protected traits—race, color, religion, sex, and national origin—that employers are barred from using in making personnel decisions such as hiring, firing, promotion, and assignments. In order to bring suit successfully, an employee must prove that his or her employer made such a decision "because of" one of the five protected areas, not others such as height or weight, traits unprotected by Title VII (but which can be covered by additional laws, such as the Americans with Disabilities Act does).
But sex (as well as several of the other traits) is notoriously hard to pin down. To put it roughly, most scholars—and courts—consider sex to be rooted in biology, while gender is regarded as social in nature, having more to do with a person's identity and behavior than his or her chromosomes. So when a boss fires an employee solely because she is (biologically) a woman, that boss is liable for damages under sex discrimination. (Though it sounds simple enough, the burden of proof in such cases in on the employee, and employers can often claim other reasons for the decision in question.)
Gender enters into this as well, and this is critical to understanding Kramer's point regarding Mr. Pacifico case and his vegetarianism. The Supreme Court interprets sex discrimination as also including gender-stereotyping, in which employers unlawfully discriminate if they base decisions on the perception that an employee does not fit the standard behavioral norms for his or her gender. This dates to the 1989 case of Price Waterhouse v. Hopkins, in which Ann Hopkins was denied partnership in Price Waterhouse, and the court found her employers made the decision because she didn't behave or look "feminine enough." For instane, one advisor in the company told her to "walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry" in order to increase her partnership chances.
One aspect of sex discrimination that has yet to be accepted by most courts as falling under the category of sex in Title VII is sexual orientation (since one's sex does not determine one's sexual orientation). Such an action may be pursued under state or local law (21 states and the District of Columbia currently have laws prohibiting such discrimination), but not in federal court under Title VII. Just like some heterosexuals, some (but not all) homosexuals and bisexuals choose to shun stereotypical gender roles, so if employment decisions are caused by this, they have a case.
But unfortunately, courts, in a collective fit of unjustified cynicism, usually treat such cases by homosexual employees as an attempt to "bootstrap" sexual orientation discrimination to gender-stereotyping, and normally they throw such cases out. Kramer criticizes this practice, arguing that in effect, courts have a "zero tolerance" approach with regard to sexual orientation: if the plaintiff mentions his or her sexual orientation, then the case "must" truly be about sexual orientation, and since this doesn't fit under Title VII, case dismissed. In essence, these plaintiffs' sexual orientation becomes their defining feature, their "master status" (to use sociologist Erving Goffman's term), and courts refuse to look past it to the legitimate claim underneath.
In fact, Mr. Pacifico's claim invokes vegetarianism, sex discrimination (through gender stereotyping), and sexual orientation. He is straight, but his boss, Robert Catalanello, constantly denigrated his vegetarianism with anti-gay slurs (imagine the worst). He even mocked Pacifico's athleticism, making fun of his participation in triathlons because of the tight sportwear, using anti-gay slurs to demean him further. There is no evidence Catalanello thought Pacifico was gay, but he characterizes his vegetarianism as "unmanly," much as he regarded homosexual orientation and behavior.
When Mr. Pacifico was fired, the true cause was clear to him, since he had received no negative reviews of his job performance. He ended up suing in New York state court (outcome pending), which allows sexual orientation discrimination suits, claiming that he was fired because he was perceived to be gay. But Professor Kramer argues that Pacifico should be allowed to sue in federal court under Title VII, because his boss's behavior falls under gender-stereotyping: the belief that "real men" eat meat. But the element of sexual orientation involved in the case may handicap such a claim, and that is the tragedy Kramer points out in his paper.
Kramer makes a modest suggestion: that unprotected traits, such as sexual orientation under Title VII, should simply be disregarded when bringing a claim under a protected trait (such as sex or gender-stereotyping). Just because a certain trait is unprotected (under Title VII) doesn't mean it should count against a legitimate claim under a protected trait, and it doesn't imply that the plaintiff is trying to bootstrap an unprotected trait to a protected one.
This may seem to be a way to sneak protection for any personal trait into Title VII employment discrimination law, and Kramer acknowledges this line of criticism. But under his conception, it all still comes down to sex discrimination, specifically gender-stereotyping: he is not trying to introduce vegetarianism into Title VII, but rather shows how it contributes to the gender-stereotyping theory that courts understood as part of Title VII since 1989. If Kramer has his way, Mr. Pacifico would not be suing based on sexual orientation, or even vegetarianism—he would be suing because his boss did not think he acted like a man "should" act.