Title VII: A Shift from Sex to Relationships
Victoria L. Schwartz
University of Chicago - Law School; Pepperdine University School of Law
February 3, 2012
Harvard Journal of Law and Gender, Vol. 35, p. 209, 2012
The topic of employment discrimination based on sexual orientation has slipped through the cracks. As the public focus has shifted to the repeal of “Don’t’ Ask, Don’t’ Tell,” it has been largely ignored that discrimination on the basis of sexual orientation is legal not only in the military, but under current interpretations of federal law is legal by all employers in the United States. This Article challenges the common assumption that Title VII does not protect against discrimination on the basis of sexual orientation. It does so by showing that the logic of the jurisprudence in which courts have held that Title VII applies to claims where an individual is discriminated against based upon a relationship with someone of a different race, national origin, or most recently sex — a form of discrimination this Article calls relational discrimination — necessarily applies to discrimination on the basis of sexual orientation.
Although courts have consistently rejected arguments that Title VII applies to sexual orientation this position is indefensible in light of the current state of the law. Courts facing sexual orientation discrimination claims have largely focused on the individual’s protected characteristic viewed in isolation, which has caused them to remain fixated on how to interpret the term “sex” in the statute. In the meantime, other areas of Title VII jurisprudence have clearly moved from viewing the individual’s protected characteristic in isolation to a relationship-based analysis. By combining a normative and strict statutory construction dimension, this argument ought to appeal to both liberals and conservatives and should force scholars, academics and ultimately courts who have largely conceded that sexual orientation is not protected by Title VII to confront and apply these relational principles in considering sexual orientation-based employment discrimination cases. If they do so, they will find that as a matter of statutory interpretation, reason, and policy, Title VII ought to be interpreted as protecting against discrimination on the basis of sexual orientation.
Number of Pages in PDF File: 54
Keywords: employment discrimination, sexual orientation, statutory interpretation, relational, Title VIIAccepted Paper Series
Date posted: February 8, 2012
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