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Title VII Should Include Sexual Orientation

By Alexandrea Doroba


Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex and national origin.[1] The Supreme Court of the United States expanded the definition of sex to include sexual harassment in the workplace in Meritor Sav. Bank v. Vinson.[2] The Supreme Court further expanded the definition of sex in Price Waterhouse v. Hopkins,[3] where the court prohibited discrimination based on gender non-conformity. After Price Waterhouse, employers could not discriminate against an employer for not conforming to their gender stereotype.


This blog post will discuss the Supreme Court’s review of lower court cases that attempt to further expand the definition of sex in Title VII to include sexual orientation as well as the potential implications of that Supreme Court decision. For some years, circuit courts have split their decisions on this issue. In October 2019, the Supreme Court heard arguments on three cases focusing on this issue. In two of these cases, the Court must decide whether Title VII protects those that faced discrimination on the basis of their sexual orientation.[4] In the third case, the Court will consider if Title VII protects those that have been discriminated against on the basis of their gender identity.[5] The Supreme Court will likely issue their decision on this question in April 2020.


The outcomes of these cases have huge implications. If SCOTUS holds that sexual orientation is included in the definition of sex, this will greatly increase protections for the LBGTQ+ community. As the law stands now, those in the LBGTQ+ community can legally get married throughout the U.S. on a Saturday but can then be fired for that marriage the following Monday, depending on where they live. Expanding the definition of sex in Title VII would close that gap in the law and further increase equality for people that have historically been oppressed.


Unfortunately, given the current make-up of the court, it seems unlikely that SCOTUS will include sexual orientation in the definition of sex.[6] If SCOTUS holds that sexual orientation is not a part of the definition of sex, there would be a long, uphill battle to get legislators to pass new legislation explicitly prohibiting discrimination based on sexual orientation in the workplace. That is especially true in the current political climate. Additionally, if SCOTUS finds that sexual orientation is not included in the definition of sex, this could put the underpinnings of previous cases, such as Price Waterhouse, at risk, depending on the basis of SCOTUS’ decision. Originalists may put the inclusion of protections for sexual harassment and gender non-conformity under Title VII at risk by arguing that (1) sexual orientation was not in the minds of the creators of Title VII, and (2) sexual orientation is not included in the dictionary definition of sex.[7]


We won’t know the results of these cases until April, so until then, all we can do is sit back, keep our fingers crossed, and pressure our legislators to increase LBGTQ+ protections.


[1] Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e (1964).

[2] Meritor Sav. Bank v. Vinson, 474 U.S. 57 (1986).

[3] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

[4] Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), cert granted; Bostock v. Clayton County Board of Commissioners, 723 F. App’x 964 (11th Cir. 2018), cert granted.

[5] EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 650 (2018), cert granted.

[6] There are currently five conservative justices and four liberal justices. Conservative justices historically dislike expanding current law as they generally believe it is the role of Congress to change the law, not the Court. See, The Political Leanings of the Supreme Court Justices, Axios, (June 1, 2019), https://www.axios.com/supreme-court-justices-ideology-52ed3cad-fcff-4467-a336-8bec2e6e36d4.html; Robert F. Nagel, Conservatives and the Court, National Affairs, (2017), https://www.nationalaffairs.com/publications/detail/conservatives-and-the-court.

[7] Miriam Webster, https://www.merriam-webster.com/dictionary/sex.

 

This blog contains opinion pieces by members of the Journal's editorial staff on issues germane to the Journal's area of focus.  The views expressed in an individual post represent the views of the post's author only.

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