Heteronormativity in Employment Discrimination Law

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.