Because of Sex

Abstract

Even though Obergefell was a significant victory for the LGBT community, in the aftermath, a same-sex couple who gets married over the weekend may be fired from their jobs on Monday for simply displaying or posting pictures of their wedding. Because no explicit federal antidiscrimination law encompassing LGBT persons exists in the United States, the employer’s action in firing an employee because they were gay or lesbian would be legal in the majority of states. Therefore, marriage equality ironically makes employment discrimination against LGBT workers easier, in that employers are now more aware of who in their workforce identifies as LGBT because of their marital status and request for spousal benefits. In 2013, the year the Supreme Court invalidated the Defense of Marriage Act in U.S. v. Windsor, approximately twenty percent of same-sex couples were married. In contrast, by October 2015, four months after the Obergefell decision, approximately forty-five percent of same-sex couples reported being married. Because of this trend, same-sex couples are increasingly demanding spousal benefits from their employers, constructively notifying their employers of their sexual orientation. These requests for spousal benefits potentially increase the vulnerability of these employees to adverse employment actions. As a result, the necessity that discrimination based on gender identity and sexual orientation be clearly cognizable under Title VII has become even more critical. LGBT employees should not be faced with the choice of being married or being employed. Many Americans currently believe that federal law prohibits discrimination because of sexual orientation and gender identity in the workplace. While it is true that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from discriminating because of an employee’s race, color, religion, sex, or national origin, courts, legislators have historically been slow to extend these protections to LGBT workers. The result of this reluctance is that LGBT employees remain largely unprotected under an unpredictable patchwork of laws and policies, consisting of presidential executive orders, private employer initiatives, city and county ordinances, gubernatorial executive orders, and state legislation. As a result, discrimination in the workforce remains a constant in the lived experience of LGBT persons. As of 2016, thirty-four states and the District of Columbia had taken some steps, either legislatively or through executive action, to limit or prohibit workplace discrimination on the bases of gender identity or sexual orientation. Yet even among these states, victims of workplace discrimination based on sexual orientation or gender identity were provided redress through a private right of action in only twenty-two states and the District of Columbia. Section I of this article discusses this background. Section II of this article discusses development of the prohibition against discrimination “because of sex” that is contained in Title VII, including the legislative history of Title VII and the initial interpretations of the meaning of “because of sex” in the Title VII context. Section III is focused on general questions regarding the applications of Title VII to claims of discrimination based on sexual orientation, with Sections IV and V focused more specifically on treatment by the EEOC and the courts, respectively, on the question of whether Title VII prohibits discrimination based on sexual orientation. Section VI, the concluding section of this article examines the theories through which Title VII has been seen by courts to prohibit discrimination based on sexual orientation. Ultimately, this article attempts to propose a unified theory under which discrimination based on sexual orientation would be included under Title VII’s prohibition against discrimination “because of sex.”

Keywords: Title VII, Employment Discrimination, Sexual Orientation, Gender, Gender Expression

JEL Classification: K10, K30, K31, K39,J7, J70, J71