Using the Past to Fix the Future: Another Way forward for Sexual Orientation Discrimination Under Title VII

When most people think of employment discrimination, the first thing that comes to mind is discrimination based on race; however, today’s deepest employment discrimination questions revolve around sexual orientation and gender identity. While increasing numbers of Americans self-identify as lesbian, gay, bisexual (LGB) and American society continues to become more accepting of this fact, the courts are divided concerning whether the touchstone of employment discrimination law, Title VII of the Civil Rights Act of 1964, provides protection against discrimination based on sexual orientation. This thesis traces the development of sex discrimination jurisprudence over the last 54 years, with a particular focus the judicial expansions of Title VII over the last 20 years, to include same-sex sexual harassment and gender stereotyping. With this background, this thesis analyzes and critiques recent decisions of the 7th and 2d Circuits holding that sexual orientation discrimination is Title VII sex discrimination. This thesis argues that the better statutory interpretation of Title VII (and likely result of Supreme Court review) is that text of Title VII cannot be read to include sexual orientation discrimination; however, if we are live up to our promise of a nation based on equality under the law free from arbitrary forms of discrimination, we must do better. As such, this thesis proposes legislation, as well as a strategy for implementation, to meet this challenge