"50 Years Later. . . Still Interpreting the Meaning of 'Because of Sex' within Title VII and Whether it Prohibits Sexual Orientation Discrimination"
Open AccessA lot of supporters of antidiscrimination laws usually focus on banning racial discrimination. Of course, we understand that opposition to race discrimination has great historical and emotional resonance in a country that has institutionalized racial oppression for hundreds of years, but that is not the only form of discrimination that deserves protection. State and federal laws, including Title VII of the Civil Rights Act of 1964 (Title VII) prohibit discrimination in employment decisions like hiring and firing based on race, religion, color, sex, and national origin. This thesis focuses on the provision of "sex" within Title VII. Although the provision "because of sex" is included in Title VII's protection, there is very little legislative history to determine exactly what Congress intended to include in its prohibition of workplace discrimination "because of sex." With little guidance, courts have been forced to develop their own doctrines in order to determine the scope of Title VII's prohibition on sex discrimination. The U.S. Supreme Court has not directly ruled on this issue, but it is interpreted within employment discrimination law that Title VII legislation does not prohibit discrimination on the basis of sexual orientation.This thesis discusses how courts have distinguished between discrimination claims based on biological sex and gender-nonconformity, from claims based on sexual orientation, holding that the latter claim is not actionable under Title VII while the former types are actionable. This thesis will further focus on the notion that the "because of sex" provision should protect both heterosexuals and homosexuals from workplace discrimination and the many avenues we can take to guarantee protection from employment discrimination for all individuals, regardless of your sexual orientation.
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