Sexual Orientation Discrimination As a Form of Sex-Plus Discrimination

54 Pages Posted: 21 Feb 2019

See all articles by Marc Chase McAllister

Marc Chase McAllister

Texas State University, San Marcos - College of Business Administration

Date Written: February 21, 2019

Abstract

This Article examines whether sexual orientation discrimination claims are a form of sex-plus discrimination under Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination in employment on the basis of “sex.” Until very recently, every United States Court of Appeals to have interpreted Title VII’s prohibition of sex discrimination had determined that it does not encompass discrimination claims on the basis of sexual orientation. Times, and judicial interpretations, are changing. In April 2017, the United States Court of Appeals for the Seventh Circuit overturned decades of precedent by holding that sexual orientation discrimination claims are indeed encompassed within Title VII’s prohibition of sex discrimination, a decision followed only months later by the Second Circuit Court of Appeals. Although there is little mention of sex-plus discrimination in these watershed cases, this Article shows how aspects of the sex-plus doctrine are interwoven throughout the majority and concurring opinions in those cases. From there, this Article argues that sex-plus theory is a valid basis upon which to recognize sexual orientation discrimination claims under Title VII, and contends that as other courts revisit whether Title VII applies to such claims, those courts should phrase the issue in sex-plus terms.

Keywords: sexual orientation, discrimination, Title VII

Suggested Citation

McAllister, Marc Chase, Sexual Orientation Discrimination As a Form of Sex-Plus Discrimination (February 21, 2019). Available at SSRN: https://ssrn.com/abstract=3339405 or http://dx.doi.org/10.2139/ssrn.3339405

Marc Chase McAllister (Contact Author)

Texas State University, San Marcos - College of Business Administration ( email )

San Marcos, TX 78666
United States

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