Does Title VII proscribe sexual orientation discrimination?

Pride” by EricaJoy is licensed under CC BY-SA 2.0.

Chloe Knue, Associate Member, University of Cincinnati Law Review

I. Introduction

The Civil Rights Act of 1964 (“Title VII”) proscribes discrimination on the basis of four protected categories: (1) race, (2) sex, (3) religion, and (4) national origin.[1] Unless a class is specifically protected by Title VII or separate legislation enacted by Congress or a state legislative body, an employer may terminate or otherwise disadvantage an employee for discriminatory reasons.[2] In 2018, when Zarda v. Altitude Express, Inc. was decided, the Second Circuit extended employment protections to plaintiffs who identified as homosexual.[3] Plaintiffs have turned to federal courts to recognize sexual orientation as a protected class because Congress has “propos[ed] and reject[ed] . . . over fifty amendments to add sexual orientation to Title VII . . .”[4] Even though most judges agree, as a matter of public policy, that sexual orientation should be protected by Title VII, they disagree about how it should be written into the law.[5] In Zarda, the majority and dissent dispute whether sexual orientation should be incorporated into Title VII by judicial construction or whether it should be left to Congress. The Supreme Court granted certiorari to resolve the disagreement between the majority and dissent.

II. Background

 A Title VII sex discrimination action asks whether “‘sex . . . was a motivating factor for any employment practice. . .”[6] It is common for plaintiffs to petition courts to include sexual orientation into the definition of sex in Title VII.[7] If this definition is adopted, the question becomes whether (1) a person’s sex or (2) a subset of his or her sex (i.e. sexual orientation) motivated an employer’s decision.[8] In the early 2000’s, the Second Circuit declined to adopt this interpretation in two cases.

In Simonton v. Runyon, the court defined sexual orientation as something separate from sex discrimination.[9] Mr. Simonton was a postal worker who identified as a gay man.[10] He had been subjected to disturbing abuse and discrimination by his co-workers which he alleged caused him to suffer a heart attack.[11] He argued that sex in Title VII includes sexual orientation. 

First, Mr. Simonton relied on Oncale.[12] In Oncale, the Supreme Court held that same-sex sexual harassment could be protected by Title VII.[13] Mr. Simonton argued that his treatment should also be protected because non-heteronormative sexual harassment was protected in Oncale. The court disagreed. It reasoned, “Oncale emphasized that every victim of such harassment must show that he was harassed because he was male [as opposed to his sexual orientation].”[14] The court’s analysis hinged on whether a harasser manifested a romantic interest in a victim.[15]                        

Second, Mr. Simonton asserted his circumstances were the same as those in Price Waterhouse v. Hopkins.[16] In that case, a female accountant was denied a promotion because she did not conform to traditional gender stereotypes.[17] According to the court, “[s]he was advised that she could improve her chances for partnership if she would ‘walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.’”[18] Similarly, Mr. Simonton argued that, as a gay man, he failed to conform to gender roles.[19] Nonetheless, the court maintained “[t]his [gender stereotype] theory would not bootstrap protections for sexual orientation into Title VII because not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine.”[20] The court added that there was “no basis in the record to surmise that [Mr.] Simonton behaved in a stereotypically feminine manner.”Subsequently, the court granted the defendant’s motion to dismiss. 

In another case, Dawson v. Bumble & Bumble, the court struggled to draw a line between gender stereotypes and sexual orientation stereotypes.[21] Ms. Dawson worked as a hair assistant at a Bumble and Bumble hair salon and identified as a lesbian female.[22] She attributed her termination to her self-described masculine haircut and dress.[23] Although Ms. Dawson’s co-workers had commented on her appearance and even nicknamed her “Donald,” the court was careful not to read sexual orientation into the statute.[24] The court cited an article that “counsel[ed] ‘gay plaintiffs bringing claims under Title VII [to] emphasize the gender stereotyping theory and de-emphasize any connection the discrimination has to homosexuality[.]’”[25] The court granted the defendant’s motion to dismiss because the court believed that Ms. Dawson was trying to bring a claim for sexual orientation discrimination rather than gender stereotyping under Title VII.[26]

III. Zarda v. Altitude Express

Zarda overturned Simonton and Dawson.[27] Mr. Zarda, a gay man, stated that he would sometimes try to cure the awkwardness that would arise when he would strap himself to a woman for a skydive by revealing that he was gay. Mr. Zarda alleged that he was terminated when a client’s boyfriend complained to Mr. Zarda’s supervisor about his sexuality.[28] The court defined sex to include sexual orientation for three reasons.[29]

First, the court relied on the knowing requirement.[30] This is the idea that “one cannot fully define a person’s sexual orientation without identifying his or her sex, . . .”[31] The inquiry asks: (1) what is “the sex of the person and [2] that of the people to whom he or she is attracted.”[32] In other words, you can never get to step two without first completing step one. Therefore, the court found that sex and sexual orientation are related. In opposition, it was argued that it is possible to begin at step two.[33] For example, an employee can be fired for being gay, without any mention of his maleness.[34] However, the court declined to let terminology distract from reality.[35] It was also argued that the original purpose of Title VII prevented the majority’s characterization of sex.[36] But the court framed the original purpose in a different way as a “‘broad rule of workplace equality.’”[37] It also noted that in other contexts where courts extended Title VII protections “‘to cover reasonably comparable evils,’”such as sexual harassment and hostile work environment.[38] The court found that sexual orientation discrimination was a reasonably comparable evil.[39]

Second, the court returned to the gender stereotype argument articulated in Simonton and Dawson.[40] The court found, “that ‘the line between sex discrimination and sexual orientation discrimination is “difficult to draw” because that line does not exist, save as a lingering and faulty judicial construct.”[41] In support of this finding, the court cited a number of degrading slurs, including, “macho”and “fem[.]”[42] It emphasized the impossibility of determining whether these slurs refer to a person’s gender or sexual orientation because there is inherent overlap.[43] For that reason, the court disagreed with the court in Simonton and found “that same-sex orientation ‘represents the ultimate case of failure to conform’ to gender stereotypes[.]”[44] For example, when a person is discriminated against for being gay, “[t]he gender stereotype at work [there] is that ‘real’ men should date women, . . .”[45] Third, the court relied on the associational discrimination theory.[46] Historically, this theory applied only to racial discrimination cases.[47] For example, in Holcomb v. Iona College, a white male was fired for marrying a black woman.[48] The court applied the theory to Mr. Zarda’s case because “Title VII, . . . ‘on its face treats each of the enumerated categories exactly the same.’”[49] The court concluded that Mr. Zarda could not be fired from his job for associating with other men.[50]

The dissent argued that sexual orientation is not a protected class based on Title VII’s “original public meaning.”[51] Judge Lynch discussed the history of civil rights causes, including the fight for racial equality, women’s rights, and rights for members of the LGBTQ community.[52] He noted that each cause developed separate and under a unique set of circumstances.[53] Therefore, he asserted, they are not the same. When the government seeks “to protect an entirely different category of people[,]” the dissent said it must do so through legislation.[54] Age and disability, for example, had to be protected by subsequent acts of Congress.[55] Judge Lynch made it clear in his opinion that he is an avid proponent of the political process.[56] In other words, if you want a protection, you must go out and lobby Congress for it. This recourse worked in twenty-two states.[57] And, according to Judge Lynch, “[i]n none of those states did the prohibition of sexual orientation discrimination come by judicial interpretation of a pre-existing prohibition on gender-based discrimination to encompass discrimination on the basis of sexual orientation.”[58] Despite compelling policy reasons for protecting members of the LGBTQ community from discrimination in the workplace, the dissent would have left the decision to Congress.[59]

IV. Discussion

 Title VII has fallen behind its foreign legislative equivalents. There are numerous different ways of thinking about sex, gender, and sexual orientation.[60] Nevertheless, courts have been forced to lump these modes of self-identification together under the legal definition of sex under Title VII. The best way for this error to be resolved is for Congress to amend the statute. If the Court were to make these distinctions, Title VII would be limited to a proscription on discrimination based on biological sex. In other words, only sex specific traits like child-bearing capabilities and life expectancy would be protected from discrimination.[61] Courts would no longer have any support for reading gender stereotypes or sexual orientation into the statute. Other countries, like Canada and the United Kingdom, have amended their Title VII equivalents to recognize a greater range of classes. In the United Kingdom’s version of Title VII, for example, sex, sexual orientation, and gender reassignment are separate classes.[62] Similarly, Canada protects sex, sexual orientation, and gender identity or expression.[63] Congress, as the representatives of the American people, must amend Title VII to give these separate classes the integrity, respect, and protection that each deserves. 

Congress should legislate further and rework Title VII to protect all class of self-identification because no group is more deserving of federal protection than others. The dissent pointed out that “Congress . . . adopted narrower language than ‘discrimination based on personal characteristics or classifications unrelated to job performance.’”[64] Consider what would happen if this language were adopted as the new Title VII. Aside from employees who are employed at-will, what if you could not be fired for any reason other than your job performance or a budgetary reason? In other words, what if you could not be discriminated against based on any mode of self-identification or personal characteristic? This broad, all-encompassing language would cause no harm to the employer. Any argument to the contrary would rely on stereotypes about the job performance of people who are women, people who are married, people who belong to the LGBTQ community, people who practice a certain religion, or people who are or are not white. The point is: people should not be fired for being people. Aside from administrative concerns, an employee should only be fired for failure to measure up to job performance standards. Moreover, a diverse range of employees is in the interest of an employer. All businesses are in the business of people. It is human nature to gravitate toward people who manifest the characteristics you see in yourself. An employer may be able to expand his or her customer base by employing different types of people with whom all different types of people can relate. 

If Title VII underwent this purposed Congressional overhaul, the question would remain: what groups would an employer be prevented from discriminating against that should necessarily be susceptible to discrimination? The short answer, of course, is no one. Even if you do not agree with the lifestyle choices of your co-workers, it is in the interest of everyone that all people can work and live a fulfilled life. Some people find that getting up every day and working gives their life purpose. When people feel that they are without purpose and are alienated by society, this can lead to acts of violence. When a man is fired from his job for being gay, the taxpayers bear the burden of his unemployment. Although you may not want to spend your free time with an “aggressive” female, or a gay man, you must be able to tolerate all types of people in the modern workplace. America was intended to be the land of opportunity, but countries like Canada and the United Kingdom have greater protections that facilitate opportunity for more people. The United States should raise the bar even higher and facilitate opportunity for all people.

V. Conclusion

The Supreme Court should affirm the Second Circuit’s strong argument that sexual orientation discrimination is related to sex discrimination. This employment right for members of the LGBTQ community is long overdue. It is incomprehensible that a person in 2019 can be fired for having a certain personal characteristic. Unlike age and disability, which have no textual support in Title VII, it is fortunate that sex can be construed to include sexual orientation. Although the Court must insert itself into this debate in the interest of justice, it should call on Congress to make an explicit change to Title VII. 

[1]Zarda v. Altitude Express, Inc., 883 F.3d 100, 111 (2nd Cir. 2018). 

[2]Id. 147-48 (Lynch, J., dissenting).

[3]Id. at 108. 

[4]Id. at 155. 

[5]Id. at 147-48, 167. 

[6]Id. at 112 (quoting 42 U.S.C. §2000e-2(m)). 


[8]Id. at 112 (quoting Hively v. Ivy Tech Cmty. College of Indiana, 853 F.3d 339, 343 (7th Cir. 2017)), 117 (“[T]he proper question is whether sex is a ‘motivating factor’in sexual orientation discrimination, . . . or, said more simply, whether sexual orientation is a function of sex.”) (quoting 42 U.S.C. §2000e-2(m)). 

[9]Simonton v. Runyon, 232 F.3d 33, 36-8. (2nd Cir. 2000). 

[10]Id. at 34. 

[11]Id. at 34-5. 

[12]Oncale v. Sundower Offshore Services, Inc., 523 U.S. 75, 80-81 (1998). 

[13]Id. at 36 (quoting Oncale, 523 U.S. at 79) (“In Oncale, the Supreme Court rejected a per se rule that same-sex sexual harassment was non-cognizable under Title VII. The Court reasoned that ‘nothing in Title VII necessarily bars a claim of discrimination “because of . . . sex” merely because the plaintiff and the defendant (or person charged with acting on behalf of the defendant) are of the same sex.’”). 

[14]Id. (citing Oncale, 523 U.S. at 80-81). 

[15]Id. at 36 (quoting Oncale, 523 U.S. at 80). 

[16]Price Waterhouse v. Hopkins, 490 U.S. 228, 235, 250 (1989). 

[17]Simonton, 232 F.3d at 37 (quoting Price Waterhouse, 490 U.S. at 250). 

[18]Id. (quoting Price Waterhouse, 490 U.S. at 235). 

[19]Id. at 37-8. 

[20]Id. at 38. 

[21]Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2nd Cir. 2005) (“Both in her complaint and in her briefing on this appeal, Dawson has significantly conflated her claims. As a result, it is often difficult to discern when Dawson is alleging that the various adverse employment actions allegedly visited upon her by Bumble & Bumble were motivated by animus toward her gender, her appearance, her sexual orientation, or some combination of these.”). 

[22]Id. at 213. 

[23]Id. at 221-22 (quoting Dawson’s affidavit and appellate brief). 

[24]Id. at 218 (quoting Simonton, 232 F.3d at 38), 222 (quoting Dawson’s complaint). 

[25]Id. at 218 (quoting Kristin M. Bovalino, How the Effeminate Male Can Maximize His Odds of Winning Title VII Litigation, 53 Syracuse L.Rev. 1117, 1134 (2003)). 

[26]Id. at 217-218, 219 (citing Martin v. New York State Dep’t of Corr. Servs., 224 F.Supp.2d 434, 447 (N.D.N.Y. 2002).

[27]Zarda v. Altitude Express, Inc., 883 F.3d 100, 107-8 (2nd Cir. 2018).

[28]Id. at 108-09. 

[29]Id. at 112-13. 

[30]Id. at 113 (citing Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339, 358 (7th Cir. 2017)) (Flaum, J., concurring)). 


[32]Id. at 113 (citing Hively 853 F.3d at 358) (Flaum, J., concurring). 

[33]Id. (“Choosing not to acknowledge the sex-dependent nature of sexual orientation, certain amici contend that employers discriminating on the basis of sexual orientation can do so without reference to sex.”). 

[34]Id. (“‘I fired him because he is gay,’ not ‘I fired him because he is a man.’”)

[35]Id. at 113-114 (“But this semantic sleight of hand is not a defense; it is a distraction. The employer’s failure to reference gender directly does not change the fact that a ‘gay’ employee is simply a man who is attracted to men . . . More broadly, were this Court to credit amici’s argument, employers would be able to rebut a discrimination claim by merely characterizing their action using alternative terminology. Title VII instructs courts to examine employers’motives, not merely their choice of words.”) (citing 42 U.S.C. §2000e-2(m)). 

[36]Id. at 114 (quoting Hively, 853 F.3d at 362) (Sykes, J., dissenting). 

[37]Id. at 111 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). 

[38]Id. at 114-15 (quoting Oncale, 523 U.S. at 79-80). 

[39]Id. at 115. 

[40]Id. at 119. 

[41]Id. at 122 (quoting Videckis v. Pepperdine Univ., 150 F.Supp.3d 1151, 1159 (C.D. Cal. 2015)) (quoting Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291 (3rd Cir. 2009)). 

[42]Id. at 121 (quoting Fabian v. Hosp. of Cent. Conn., 172 F.Supp.3d 509, 524 n.8 (D. Conn. 2016)) (quoting Kay v. Indep. Blue Cross, 142 Fed.Appx. 48, 51 (3rd Cir. 2005)). 

[43]Id. at 122 (“We now conclude that sexual orientation discrimination is rooted in gender stereotypes and is thus a subset of sex discrimination.”). 

[44]Id. at 121 (quoting Hively, 853 F.3d at 346). 

[45]Id. (quoting Centola v. Potter, 183 F.Supp.2d 403, 410 (D. Mass. 2002)). 

[46]Id. at 124. 


[48]Id. (citing Holcomb v. Iona College, 521 F.3d 130, 139 (2d Cir. 2008). 

[49]Id. at 125 (quoting Price Waterhouse, 490 U.S. at 243 n.9). 


[51]Id. at 143-44 (Lynch’s dissent) (Hively, 853 F.3d at 362) (Sykes, J., dissenting). 

[52]Id. at 137-43. 

[53]Id. at 143. 

[54]Id. at 145, 147. 

[55]Id. at 147-48 (citing Americans with Disabilities Act of 1990, 42 U.S.C. §12101 et seq.) (Age Discrimination in Employment Act of 1967, 29 U.S.C. §621 et seq.). 

[56]Id. at 148 (“But not everything that is offensive or immoral or economically inefficient is illegal, and if the view that a practice is offense or immoral or economically inefficient does not command sufficiently broad and deep political support to produce legislation prohibiting it, that practice will remain illegal.”). 

[57]Id. at 152. 


[59]Id. at 166-67. 

[60]Michele J. Eliason, An Exploration of Terminology Related to Sexuality and Gender: Arguments for Standardizing the Language, Social Work in Public Health, 162-175 (2014). 

[61]Zarda, 883 F.3d at 117 (quoting L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 704-5, 712 (1978) (women discriminated against based on greater life expectancy). 

[62]Equal Opportunities Commission, What Does Equal Opportunities Mean?, (last visited Oct. 29, 2019).

[63]Canadian Human Rights Commission, About Human Rights, (last visited Oct. 29, 2019).

[ Zarda, 883 F.3d at 147.


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