Against Gay Potemkin Villages: Title VII and Sexual Orientation Discrimination
96 Texas Law Review Online
13 Pages Posted: 31 Mar 2017 Last revised: 2 Jul 2021
Date Written: March 31, 2017
Should Title VII allow employers to invoke a “love the sin, hate the sinner” defense to escape liability for firing lesbians, gays, and bisexuals? According to one prominent federal judge, the answer is “yes.”
This Essay examines federal judges’ evolving and correct recognition that sexual orientation discrimination claims are colorable under Title VII’s existing framework. The Essay compares the arguments concerning the actionability of sexual orientation claims laid forth in the Second Circuit (Christiansen v. Omnicom), the 7th Circuit (Hively v. Ivy Tech), and the Eleventh Circuit (Evans v. Georgia Regional Hospital).
The Essay argues against the position taken by one member of the Eleventh Circuit panel that, for Title VII’s purposes, sexual orientation as a status is severable from individuals’ same-sex attractions. The piece examines why this status-conduct dichotomy theory is both inconsistent with Supreme Court gay rights precedents and Title VII’s protections against racial and religious discrimination. Concluding that this fringe theory is both radical and unworkable, the Essay urges courts to reject it.
Keywords: sexual orientation, Title VII, gender nonconformity, sex stereotypes, LGBT rights, employment discrimination, sex discrimination, statutory interpretation, civil rights, dynamic statutory interpretation, same-sex marriage, marriage equality, EEOC, administrative law
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