1The authors thank Benjamin Jacobs for his assistance with this paper.
©Morgan, Lewis & Bockius LLP 2014
NATIONAL CONFERENCE ON
EQUAL EMPLOYMENT OPPORTUNITY LAW
March 2014
Rancho Mirage, CA
TITLE VII AT AGE-50: STILL ROOM FOR CREATIVITY?
Developing New Defenses and Testing New Claims
Mark S. Dichter1
W. John Lee
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
1
I. NEW SUBSTANTIVE USES OF TITLE VII
A. Sexual Orientation And Gender Identity
1. Issue: Whether Title VII prohibits discrimination on the basis of sexual
orientation or gender identity.
2. Statutory Authority: Presently, Title VII does not expressly recognize
sexual orientation or gender identity as a protected class.2In November
2013, however, the Senate passed the Employment Non-Discrimination
Act (ENDA) and referred it to the House of Representatives. The law, as
proposed, would expressly prohibit employment discrimination on the
basis of an individual’s actual or perceived sexual orientation or gender
identity. It is limited, however, to disparate treatment claims. It also
contains an exemption for religious organizations and prohibits EEOC
from compelling the collection or production of statistics on sexual
orientation or gender identity. Employment Non-Discrimination Act of
2013, S. 815, 113th Cong. §§ 4, 6, 7 (2013). Speaker of the House John
Boehner has said that he will not bring the bill to the floor because it “will
increase frivolous litigation and cost American jobs, especially small
business jobs.” Jeremy W. Peters, Bill Advances to Outlaw
Discrimination, N.Y. TIMES, Nov. 14, 2013.
3. Judicial Interpretations: Given the lack of statutory protection, courts
have consistently refused to recognize claims of discrimination on the
basis of sexual orientation or gender identity. See, e.g.,Dawson v. Bumble
& Bumble, 398 F.3d 211, 217 (2d Cir. 2005) (“[T]he law is well-settled in
this circuit and in all others to have reached the question that . . . Title VII
does not prohibit harassment or discrimination because of sexual
orientation.” (citations and quotation marks omitted)); Gilbert v. Country
Music Ass'n, Inc., 432 F. App’x 516, 519 (6th Cir. 2011) (“Under Title
VII, sexual orientation is not a prohibited basis for discriminatory acts. A
claim premised on sexual-orientation discrimination thus does not state a
claim upon which relief may be granted.” (citations and quotation marks
omitted)); Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221 (10th Cir.
2007) (“[D]iscrimination against a transsexual based on the person’s status
as a transsexual is not discrimination because of sex under Title VII.”).
4. Actions by Plaintiffs: Plaintiffs have pressed claims related to sexual
orientation or identify using other theories of discrimination.
a. Claims based on same-sex harassment theory under Oncale:
2Seventeen states and Washington, D.C., however, currently have laws that prohibit employment
discrimination based on sexual orientation and gender identity. Further, four states have laws that
prohibit employment discrimination based on sexual orientation only. See Statewide Employment
Laws and Policies, Human Rights Campaign,available at
http://www.hrc.org/files/assets/resources/employment_laws_062013.pdf.
