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71 Duke L.J. 1 (2021-2022)

handle is hein.journals/duklr71 and id is 1 raw text is: Duke Law Journal VOLUME 71 OCTOBER 2021 NUMBER 1 THE GAY PERJURY TRAP CHRISTOPHER R. LESLIEt ABSTRACT In Bostock v. Clayton County, the Supreme Court held Title VII's prohibition on sex-based employment discrimination applies to discrimination based on sexual orientation and gender identity. Although the opinion is an important victory, if history is any guide, Bostock was only one battle in a larger war against invidious workplace discrimination based on sexual orientation and gender identity. Prejudiced employers and managers will seek alternative, less obvious ways to discriminate. Judges and civil rights lawyers must prepare themselves to recognize and reject pretextual rationales for adverse actions taken against lesbian, gay, and bisexual employees. A better understanding of history can inform those efforts. This Article examines an unexplored chapter in the United States' history of anti-gay discrimination in the workplace: punishing gay workers for concealing their sexual orientation. Beginning in the 1960s, as federal and state law implemented procedural protections for public- sector workers, employers developed a new mechanism to evade those protections: the gay perjury trap. At its core, the strategy is simple. An employer asks job applicants about their sexual orientation. If they reveal that they are gay, decline to hire them. If gay workers conceal their sexual orientation and it is later discovered, terminate them for Copyright © 2021 Christopher R. Leslie. t Chancellor's Professor of Law, University of California, Irvine School of Law. The author thanks Alafair Burke, Erwin Chemerinsky, Kari Ferver, Catherine Fisk, Michele Goodwin, Tim Holbrook, Rebecca Lee, Doug NeJaime, Tony Reese, Trilby Robinson-Dorn, and the participants in faculty workshops at Emory University School of Law, Maurice A. Deane School of Law at Hofstra University, and University of California, Irvine School of Law for comments on earlier drafts. Gohar Abrahamyan, Ryan Aymard, Samrah Mahmoud, Andrea Smith, and Emily Yu provided excellent research support.