Dehumanization 'Because of Sex': The Multiaxial Approach to the Title VII Rights of Sexual Minorities

58 Pages Posted: 10 Jan 2020 Last revised: 6 Nov 2020

See all articles by Shirley Lin

Shirley Lin

New York University School of Law

Date Written: December 27, 2019

Abstract

Although Title VII prohibits discrimination against any employee “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, most courts assessing the sex discrimination claims of LGBT employees began to intentionally analyze “sex” as a trait using social-construction evidence, and evaluated separately whether the discriminatory motive caused the workplace harm. Responding to what this Article terms a “doctrinal correction” to causation within this groundswell of decisions, the Supreme Court recently issued an “expansive” and “sweeping” reformulation of but-for causation in Bostock v. Clayton County, one that combined the sex-trait analysis with causation analysis in determining that “traits or actions” related to sexual orientation or gender identity are protected.

Because Bostock did not foreclose the use of social evidence or intersectional approaches in additional subordination contexts in which sex is a factor, this Article builds on this important development by introducing “multiaxial analysis,” a framework with which judges and stakeholders identify the role of Title VII’s protected traits as socially constructed along four axes: the aggrieved individual’s self-identification, the defendant-employer, society, and the state. This context-sensitive approach to subordination has the potential to give fuller effect to Title VII’s provisions and purposes as compared to sex-stereotyping theory or the Court’s reformulated “but-for causation.” Uncoupling causation from the sex trait analysis realizes the statute’s civil rights protections within relational, structural, and institutional dynamics as the law increasingly recognizes that the scope of sex extends beyond a fixed binary.

Keywords: Employment Law, Civil Rights, Constitutional Law, Gender, Sexuality, LGBTQIA+, Intersectionality, Jurisprudence

JEL Classification: J7, J71, K31

Suggested Citation

Lin, Shirley, Dehumanization 'Because of Sex': The Multiaxial Approach to the Title VII Rights of Sexual Minorities (December 27, 2019). 24 Lewis & Clark L Rev. 731 (2020), NYU School of Law, Public Law Research Paper No. 20-48 , Available at SSRN: https://ssrn.com/abstract=3510332 or http://dx.doi.org/10.2139/ssrn.3510332

Shirley Lin (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

HOME PAGE: http://https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=49196

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