Let’s Talk About Sex: A Discussion of Sexual Orientation Discrimination Under Title VII

On July 18, 2018, the Eleventh Circuit Court of Appeals held, in Bostock v. Clayton County Board of Commissioners, that Title VII does not protect against discrimination on the basis of sexual orientation in the workplace. To the Eleventh Circuit, sexual orientation discrimination is distinct from sex discrimination, which the statute explicitly prohibits. Many courts continue to follow this traditional rule and agree with the Eleventh Circuit’s decision. The Second and Seventh Circuits, however, have instead followed the guidance of the Equal Opportunity Employment Commission (EEOC), the federal agency that enforces Title VII, and held the opposite. The Supreme Court has not directly addressed the question of whether Title VII’s ban on discrimination “because of . . . sex” also protects against sexual orientation discrimination in particular, but that may not be the case for long. This Comment argues, ahead of the Supreme Court’s anticipated decision in the Bostock appeal, that the Supreme Court should follow the guidance of the EEOC and definitively hold that sexual orientation discrimination in the workplace is prohibited by Title VII. By doing so, the Supreme Court will remain faithful to the purpose of Title VII—equality in the workplace—and will follow its own precedent that has laid the groundwork for a more expansive reading of “because of . . . sex.