Heteronormativity in Employment Discrimination Law

15 Pages Posted: 30 May 2017 Last revised: 22 Nov 2021

See all articles by Naomi Schoenbaum

Naomi Schoenbaum

George Washington University Law School

Date Written: 2017

Abstract

This symposium Essay responds to the EEOC’s new decision to interpret federal employment discrimination law’s ban on discrimination on the basis of sex to include a ban on discrimination on the basis of sexual orientation. It argues that although the EEOC’s decision does provide cause to celebrate, ongoing heteronormativity in federal employment discrimination law will continue to stand as a barrier to equal employment opportunity for gay workers. First, Title VII provides an exception to the sex discrimination ban in the context of intimate spaces, allowing, for example, only women to be hired to serve as labor and delivery nurses. This exception proceeds on the assumption that same-sex spaces are no-sex spaces, furthering the presumption that all employees are heterosexual. Second, Title VII provides an exception to the ban on sex discrimination in the context of role-modeling for children, allowing, for example, only women to be hired as counselors to serve as role models for female clients. This exception assumes that sex dictates the ability to fulfill particular parenting roles, furthering the notion that heterosexual couples have a parenting advantage over same-sex couples. Finally, Title VII’s ban on sexual harassment generally treats male-on-female harassment as sex discrimination by assuming that harassers are heterosexual, reinforcing heteronormative assumptions with every such case. So while the EEOC’s decision will provide some protection for gay workers, a more searching inquiry of the law to root out bias on the basis of sexual orientation will be necessary for employment discrimination law to achieve its promise of equal employment opportunity for these workers.

Keywords: employment discrimination law, Title VII, heteronormativity, LGBT rights, sexual orientation, BFOQ, sexual harassment

Suggested Citation

Schoenbaum, Naomi, Heteronormativity in Employment Discrimination Law (2017). 56 Washburn L. J. 245 (2017), GWU Law School Public Law Research Paper No. 2017-38, GWU Legal Studies Research Paper No. 2017-38, Available at SSRN: https://ssrn.com/abstract=2977318

Naomi Schoenbaum (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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