Do Shifting Societal Norms Predict an Extension of Protected-Class Status to Include Sexual Orientation?

By Jacob Seth Claveloux

Sexual orientation has yet to achieve official protected status under Title VII.[1] However, there has been some informal Title VII protection extended to sexual orientation-based claims of harassment by same-sex coworkers.[2] The Seventh Circuit found that

a man who is harassed because his voice is soft, his physique is slight, his hair is long, or because in some other respect he exhibits his masculinity in a way that does not meet his coworkers’ idea of how men are to appear and behave, is harassed ‘because of’ his sex.[3]

After vacating the judgment in Doe by Doe, the following year the Supreme Court issued a related, unanimous opinion, in Oncale v. Sundowner Offshore Services,[4] where the court held that “sex discrimination consisting of same-sex sexual harassment is actionable under Title VII….”[5] While this roundabout protection from certain sexual harassment scenarios has been declared worthy of Title VII protection, far too many claims fall between the cracks of the law’s protection merely because they do not fit comfortably into such narrow terms.

Meanwhile, outside of the labor and employment sector, societal and outward political acceptance of differing sexual orientations has shifted dramatically in the last few years.[6] Given the shift towards tolerance and inclusion, up to and including states recognizing same-sex marriage,[7] the time is ripe for official expansion of Title VII protection for sexual orientation as a protected status.

The Employment Non-Discrimination Act (ENDA) has been introduced in various forms repeatedly in Congress since 1994, and passed through the House for the first time in 2007.[8] That version of the bill didn’t make it through the Senate, but it has continued to be reintroduced, most recently in the 111th Congress,[9] though it appears that once again, the initiative will fall by the wayside.[10] If legislators can get the language together,[11] perhaps the 112th Congress will be able to follow up on the relative success of the previous Congress and institute a change that will have a significant protective impact in people’s lives.


[1] 42 U.S.C. § 2000e.  The exclusion of sexual orientation as protected by Title VII was stated explicitly in DeSantis v. Pacific Telephone,  608 F.2d 327, 333 (9th Cir. 1979) (“We conclude that homosexuals are not a ‘class’ within the meaning of [Title VII]….”).

[2] See Doe by Doe v. City of Belleville, 119 F.3d 563 (7th Cir. 1997), judgment vacated and case remanded for further consideration in light of Oncale, infra n.4, 523 U.S. 1001 (1998).  Oncale’s holding was consistent with the Seventh Circuit’s extension of Title VII protection to same-sex discrimination.

[3] Id. at 581.

[4] Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998).

[5] Id. at 82.

[6] See Ira C. Lupu and Robert W. Tuttle, Same-Sex Equality and Religious Freedom, 5 Nw J. L. & Soc. Pol’y 274, 274-76 (2010); see also Jennifer Steinhauer, After Ruling on Gay Policy, New Questions for Obama, N.Y. Times, September 11, 2010, at A9 (discussing President Obama’s support for a repeal of Don’t Ask, Don’t Tell).

[7] See Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003) (protecting same-sex marriage rights under state Constitution auspices).

[8] See H.R. 3685, 110th Cong. (2007); 2007 ENDA Action, Human Rights Campaign, http://www.hrc.org/news/8161.htm (last visited November 9, 2010).  ENDA would basically provide Title VII-like protection to sexual orientation and gender identity.  See Employment Non-Discrimination Act, Human Rights Campaign, http://www.hrc.org/laws_and_elections/enda.asp (last visited November 9, 2010).

[9] See H.R. 3017, 111th Cong. (2009); Employment Non-Discrimination Act, Human Rights Campaign, http://www.hrc.org/laws_and_elections/enda.asp (last visited November 9, 2010).

[10] See Lisa Keen, ENDA Prospects Apparently Gone, Keen News Service, July 14, 2010, http://www.keennewsservice.com/2010/07/14/enda-prospects-apparently-gone.

[11] In the recent permutations of the Act, there has been some controversy over inclusion of transgender protection.  See John Aravosis, Barney on Transgender Controversy. And He’s Right, America Blog, September 28, 2007, http://www.americablog.com/2007/09/barney-on-enda-transgender-controversy.html.

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