En/Gendering Equality: Seeking Relief Under Title VII Against Employment Discrimination Based on Sexual Orientation

Professor Varona and Mr. Monks examine arguments for why and how the prohibition against discrimination because of sex in Title VII of the Civil Rights Act of 1964 should apply to anti-gay discrimination. They note that because homosexuality violates gender norms, lesbians and gay men face discrimination that usually takes the form of sex stereotyping or sexual harassment based on gender expression and nonconformity. Courts, however have almost always treated the actual or perceived homosexuality of the plaintiffs as disqualifying them from Title VII relief. Although gender nonconformity standing alone can garner Title VII relief, it typically is not protected when combined with perceived or actual homosexuality. The authors document how relief for lesbian and gay victims of employment discrimination under Title VII typically comes at the cost of closeting their sexual orientation, and settling for limited relief at best. In sexual harassment claims especially, gay plaintiffs are required to satisfy high evidentiary requirements for proving severity and harm, effectively precluding coverage of many forms of anti-gay discrimination. The authors conclude that because the predominant judicial view of gender nonconformity, and specifically Title VII's coverage of sex stereotyping, is excessively narrow, Congress should pass the Employment Non-Discrimination Act, which would explicitly prohibit public and private employment discrimination on the basis of sexual orientation discrimination as well as gender identity and expression.