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 and 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-two 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 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, of 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.”
Jack B. Harrison, "Because of Sex," 51 Loy. L.A. Rev. 91 (2018).