Sexuality and the Law Commons^™

Unwelcomeness Reconsidered: Adapting Sexual Harassment Law In The Long Wake Of #Metoo, Collin Christner

Michigan Law Review

The federal cause of action for sexual harassment in employment grew out of Title VII’s prohibition of workplace sex discrimination. In many circuits, for sexual harassment claims to be actionable, the plaintiff must show they found the referenced conduct “unwelcome.” Commentators have criticized that requirement since its inception; nonetheless, it has been wielded by courts that are either resistant or reluctant to abandon it. “Unwelcomeness” (or lack of evidence thereof) has been used to permit swaths of inappropriate workplace conduct— enshrining old, sexist stereotypes into America’s employment regulations. This Note evaluates the current approach to the unwelcomeness requirement and proposes …

Trying To Fit In To Get In: Women Working In A Masculinities World, Kimberly D. Bailey

Faculty Articles and Other Publications

In predominately male workplaces, sexualized “horseplay” is common. While this type of conduct can be a tool of gender subordination, it also is a tool for fostering camaraderie and collegiality among co-workers. In other words, some workers, including women, find that engaging in sexual horseplay is necessary in order to “fit in.” This Article critiques the failure of courts to appreciate the peer pressure to “fit in” when they analyze Title VII sexual harassment cases. This oversight is especially evident when courts try to determine whether a plaintiff found particular sexual conduct to be “unwelcome.” If a plaintiff voluntarily engages …

Escaping Arbitration And Class Action Waivers For Harassment Because Of Pregnancy, Sexual Orientation Or Gender Identity, Sandra F. Sperino

Faculty Publications

In 2022, Congress amended the Federal Arbitration Act (FAA) through the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. This amendment is being abbreviated to a rather clumsy acronym: EFASASHA. EFASASHA allows a person alleging sexual harassment or sexual assault to invalidate certain arbitration agreements and joint-action waivers. Congress passed the Act in response to testimony in which workers alleged that serial sexual harassment and assault continued because workers' claims were forced into private arbitration and could not be publicly adjudicated.

This Essay argues that the language that Congress used in EFASASHA is much broader than its title …

Unlocking The Beauty From Within Title Vii: Arguing For An Expansive Interpretation Of Title Vii To Protect Against Attractiveness Discrimination, Michael Conklin

American University Journal of Gender, Social Policy & the Law

Beauty may only be skin deep, but discrimination against the unattractive runs far deeper. Research emphatically demonstrates that attractiveness discrimination affects nearly every aspect of life, including hiring and promotion decisions. For example, personal injury attorneys utilize economists as expert witnesses for how their clients’ reduced attractiveness will negatively affect their future earnings. Attractiveness discrimination is just as prevalent as discrimination based on ethnicity. Unfortunately, current interpretations of federal antidiscrimination legislation do not offer protections from attractiveness discrimination. This Article offers a comprehensive framework for providing such protections under an expansive interpretation of Title VII.

Hair Me Out: Why Discrimination Against Black Hair Is Race Discrimination Under Title Vii, Alexis Boyd

American University Journal of Gender, Social Policy & the Law

In May 2010, Chastity Jones sought employment as a customer service representative at Catastrophe Management Solutions (“CMS”), a claims processing company located in Mobile, Alabama. When asked for an inperson interview, Jones, a Black woman, arrived in a suit and her hair in “short dreadlocks,” or locs, a type of natural hairstyle common in the Black community. Despite being qualified for the position, Jones would later have her offer rescinded because of her hair. CMS claimed that locs “tend to get messy” and violated the “neutral” dress code and hair policy requiring employees to be “professional and business-like.” Therefore, CMS …

Sex Trait Discrimination: Intersex People And Title Vii After Bostock V. Clayton County, Sam Parry

Washington Law Review

Title VII of the Civil Rights Act of 1964 protects employees from workplace discrimination and harassment on account of sex. Courts have historically failed to extend Title VII protections to LGBTQ+ people. However, in 2020, the U.S. Supreme Court decision in Bostock v. Clayton County changed this. Bostock explicitly extended Title VII’s protections against workplace discrimination to “homosexual” and “transgender” people, reasoning that it is impossible to discriminate against an employee for being gay or transgender without taking the employee’s sex into account. While Bostock is a win for LGBTQ+ rights, the opinion leaves several questions unanswered. The reasoning in …

Transparency And Reliance In Antidiscrimination Law, Steven L. Willborn

Catholic University Law Review

All antidiscrimination laws have two structural features – transparency and reliance – that are important, even central, to their design, but have gone largely unnoticed. On transparency, some laws, like the recent salary-ban laws, attempt to prevent the employer from learning about the disfavored factor on the theory that an employer cannot rely on an unknown factor. Other laws require publication of the disfavored factor, such as salary, on the theory that it is harder to discriminate in the sunlight. Still other laws are somewhere between these two extremes. The Americans with Disabilities Act, for example, limits but does not …

Does U.S. Federal Employment Law Now Cover Caste Discrimination Based On Untouchability?: If All Else Fails There Is The Possible Application Of Bostock V. Clayton County, Kevin D. Brown, Lalit Khandare, Annapurna Waughray, Kenneth G. Dau-Schmidt, Theodore M. Shaw

Articles by Maurer Faculty

This article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The question of whether caste discrimination is a form of race or national origin discrimination under Title VII or Section 1981 depends upon how the courts apply these definitions to caste discrimination based on untouchability. There are legitimate arguments that this form of discrimination is recognized within the concept …

Trojan Zebra: Unmasking Bostock’S Potential To Undermine Lgbtq+ Protections, James E.A. Rehwaldt

Lewis & Clark Law Review

Engaging with the methodological framework endorsed by the Supreme Court’s holding and rejected by the dissents in Bostock v. Clayton County, this Comment critically examines both the limited scope and potential misuses of the Court’s decision recognizing protection against employment discrimination for gay, lesbian, and transgender individuals under Title VII of the Civil Rights Act.

Bostock Was Bogus: Textualism, Pluralism, And Title Vii, Mitchell N. Berman, Guha Krishnamurthi

Notre Dame Law Review

In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Justice Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, …

Modernizing Discrimination Law: The Adoption Of An Intersectional Lens, Marisa K. Sanchez

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Male Same-Sex "Horseplay": The Epicenter Of All Sexual Harassment?, Kimberly Bailey

All Faculty Scholarship

In Oncale v. Sundowner Offshore Services, Inc., the U.S. SupremeCourt recognized same-sex sexual harassment as a cognizable claim of sex discrimination under Title VII of the Civil Rights Act of 1964. At the time, many scholars found this recognition to be significant andimportant, but some also argued that the Court provided an incomplete analysis regarding the meaning of discrimination “because of sex.” Specifically, some scholars argue that the Court’s opinion reinforces the sexual desire paradigm in the analysis of sexual harassment cases. Building upon this critique, this Article focuses specifically on the harassment of men who generally are perceived as …

Let's Talk About Gender: Nonbinary Title Vii Plaintiffs Post-Bostock, Meredith R. Severtson

Vanderbilt Law Review

In Bostock v. Clayton County, the Supreme Court held that Title VII’s sex-discrimination prohibition applies to discrimination against gay and transgender employees. This decision, surprising from a conservative Court, has engendered a huge amount of commentary on both its substantive holding and its interpretive method. This Note addresses a single question arising from this discourse: After Bostock, how will courts address allegations of sex discrimination by plaintiffs whose gender identities exist outside of traditional sex and gender binaries? As this Note explores, some have argued that Bostock’s textualist logic precludes sex-discrimination claims by nonbinary plaintiffs. While such arguments fail to …

Queering Bostock, Jeremiah A. Ho

All Faculty Scholarship

Although the Supreme Court’s 2020 Title VII decision, Bostock v. Clayton County, Georgia, is a victory for LGBTQ individuals, its doctrinal limitations unavoidably preserve a discriminatory status quo. This Article critically examines how and why Bostock fails to highlight the indignities experienced by queer minorities under decades of employment discrimination. In Bostock, Justice Gorsuch presents a sweeping textualist interpretation of Title VII that protects against sexual orientation and gender identity discrimination. Yet, the decision sparsely recognizes queer lived experiences, compared to prior pro-LGBTQ cases where such recognition contributed to developing an anti-stereotyping framework that confronted some of the heteronormative biases …

Amen Over All Men: The Supreme Court’S Preservation Of Religious Rights And What That Means For Fulton V. City Of Philadelphia, Christopher Manettas

Journal of Race, Gender, and Ethnicity

No abstract provided.

Zarda And Sexual Orientation Expression: A New High For Title Vii Interpretation, Nico Ramos

Catholic University Law Review

Under current federal law, a majority of jurisdictions decline to extend Title VII protections based on sexual orientation; however, a growing number of circuits have reversed precedent and held that Title VII prohibits discrimination sexual orientation discrimination. The Second Circuit’s en banc decision in Zarda v. Altitude Express reached the conclusion that sexual orientation discrimination is as a cognizable claim under Title VII because in order to discriminate against a person sexual orientation, you naturally first have to take their gender into account. The Supreme Court granted certiorari and has now heard oral arguments.

Part I of this note provides …

A Textuary Ray Of Hope For Lgbtq+ Workers: Does Title Vii Mean What It Says?, Eduardo Juarez

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Lgbt Discrimination As Religious Discrimination: Ruse Or Resolution?, Craig Westergard

Barry Law Review

No abstract provided.

Title Vii And The Unenvisaged Case: Is Anti-Lgbtq Discrimination Unlawful Sex Discrimination, Ronald Turner

Indiana Law Journal

As discussed herein, courts and individual judges recognizing or not finding actionable Title VII anti-LGBTQ14 claims have offered different rationales in support of their conflicting positions, including three justifications discussed in this project: (1) the meaning of Title VII’s “because of sex” prohibition, (2) the Supreme Court’s and circuit courts’ construction of the “because of sex” provision in the context of sex stereotyping and gender nonconformity discrimination as applied to the anti- LGBTQ question, and (3) associational discrimination theory. Claim-recognizing jurists have looked to Title VII’s text, Supreme Court and circuit court precedent, and the views of the Equal Employment …

Bostock V. Clayton County, Georgia: Brief Of Statutory Interpretation And Equality Law Scholars As Amici Curiae In Support Of The Employees, Richard Primus

Appellate Briefs

Amici are law professors who specialize in statutory interpretation and/or equality law issues. Amici are well versed in this Court's statutory interpretation and Title VII precedents and have written on these issues. Although amici have otherwise diverse views, they agree that a textualist analysis compels the conclusion that discrimination against individuals because of their sexual orientation or their transgender status is a form of discrimination "because of ... sex" within the meaning of Title VII.

The question presented in these cases is whether Title VII prohibits discrimination against individuals because of their sexual orientation or their transgender status. This Court's …

R.G. & G.R. Harris Funeral Homes, Inc. V. Equal Employment Opportunity Commission: Brief Of Professors Samuel R. Bagenstos, Michael C. Dorf, Martin S. Lederman, Leah M. Litman, And Margo Schlanger As Amici Curiae In Support Of Respondent Stephens, Sameul Bagenstos, Leah Litman, Margo Schlanger

Appellate Briefs

Amici are legal scholars who teach and write on constitutional law and civil rights law. They submit this brief to call attention to one particular means of resolving this case that would not require the Court to determine whether Title VII prohibits discrimination against transgender individuals based upon their transgender status, as such. More broadly, amici seek to offer guidance on how to interpret Title VII in cases where employers require employees to comply with sex-specific dress, grooming, and presentation requirements in the workplace.

In order to resolve this case, it is not necessary for the Court to decide whether …

Split Over Sex: Federal Circuits And Executive Agencies Split Over Sexual Orientation Discrimination Under Title Vii, Darria Turner

Catholic University Law Review

Title VII of the Civil Rights Act of 1964 expressly prohibits employment discrimination on the basis of an individual’s sex. Since its enactment, neither Congress nor the Supreme Court has definitively stated whether sex discrimination based on sexual orientation is protected under Title VII. Though the judicial interpretation of sex has evolved, courts have routinely held that the protections of Title VII do not extend to claims based on sexual orientation discrimination. As three circuits faced these claims, a split was created in the circuits as well as in the two agencies tasked with the enforcement of Title VII. This …

How The First Forty Years Of Circuit Precedent Got Title Vii's Sex Discrimination Provision Wrong, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

The Supreme Court will soon decide whether, under Title VII of the Civil Rights Act of 1964, it is discrimination “because of sex” to fire an employee because of their sexual orientation or transgender identity. There’s a simple textual argument that it is: An employer cannot take action on the basis of an employee’s sexual orientation or transgender identity without considering the employee’s sex. But while this argument is simple, it was not one that federal courts adopted until recently. This has caused some judges to object that the simple argument must be inconsistent with the original meaning of Title …

Breaking The Silence: Holding Texas Lawyers Accountable For Sexual Harassment, Savannah Files

St. Mary's Journal on Legal Malpractice & Ethics

Following the 2017 exposure of Harvey Weinstein, the #MeToo movement spread rapidly across social media platforms calling for increased awareness of the prevalence of sexual harassment and assault and demanding change. The widespread use of the hashtag brought attention to the issue and successfully facilitated a much-needed discussion in today’s society. However, this is not the first incident prompting a demand for change.

Efforts to bring awareness and exact change in regards to sexual harassment in the legal profession date back to the 1990s. This demonstrates that the legal profession is not immune from these issues. In fact, at least …

Legitimacy And Protection Against Sexual Orientation Discrimination Under Title Vii, Matt Snodgrass

Indiana Law Journal

Until relatively recently federal courts have held that claims of discrimination based in sexual orientation fall beyond the purview of Title VII protection. Even after the landmark holding in Price Waterhouse that recognized discrimination based in sex stereotypes and subsequent amendment to Title VII, courts resisted “bootstrapping” sexual orientation claims with sex discrimination claims. The result has been a number of puzzling outcomes—for example, extending Title VII protection to gay men who received adverse employment treatment due to stereotypically “effeminate” mannerism but not to gay men who meet cultural standards of masculinity— rigidly applying the structure of protected categories in …

“Sex” Is Messy (And Always Has Been): A Textualist Argument For Application Of Title Vii To Sexual Orientation Discrimination, Rebecca J. Ok

Lewis & Clark Law Review

Three recent cases have created a circuit split as to whether Title VII’s prohibition on discrimination “because of . . . sex” applies to sexual orientation discrimination, priming this issue for Supreme Court review. Events suggesting a textualist turn on the Supreme Court mean the advocate must consider whether a textualist argument can be made for application of Title VII to sexual orientation discrimination. Treatment of the topic of sexual orientation by the medical community, the commercial film industry, and the mainstream news media in the 1960s is examined. It is argued that treatment of the topic of sexual orientation …

Amicus Curiae Brief Of Equality Ohio In Support Of Intervenor Urging Reversal, Doron M. Kalir, Kenneth J. Kowalski

Law Faculty Briefs and Court Documents

Title VII’s plain language bars discharge of “any individual”—whether transgender or not—“because of such individual’s . . . sex.” It applies whenever employers take gender into account in making employment decisions. It is undisputed that the employer in this case based his decision to terminate Ms. Stephens solely on sex-based considerations. To be sure, he could have terminated Ms. Stephens for a wide array of reasons—tardiness, failure to perform, disciplinary issues—or for no reason at all. Under those circumstances, such termination—even of a transgender person—would not be “because of such individual’s sex.” But that is not the case here. Here, …

Frontiers Of Sex Discrimination Law, Jessica A. Clarke

Michigan Law Review

Review Gender Nonconformity and the Law by Kimberly A. Yuracko.

Against Gay Potemkin Villages: Title Vii And Sexual Orientation Discrimination, Anthony Michael Kreis

All Faculty Scholarship

Should Title VII allow employers to invoke a “love the sin, hate the sinner” defense to escape liability for firing lesbians, gays, and bisexuals? According to one prominent federal judge, the answer is “yes.”This Essay examines federal judges’ evolving and correct recognition that sexual orientation discrimination claims are colorable under Title VII’s existing framework. The Essay compares the arguments concerning the actionability of sexual orientation claims laid forth in the Second Circuit (Christiansen v. Omnicom), the 7th Circuit (Hively v. Ivy Tech), and the Eleventh Circuit (Evans v. Georgia Regional Hospital).The Essay argues against the position taken by one member …

Same-Sex Sex And Immutable Traits: Why Obergefell V. Hodges Clears A Path To Protecting Gay And Lesbian Employees From Workplace Discrimination Under Title Vii, Matthew W. Green Jr.

Law Faculty Articles and Essays

This article is set forth in five parts. Part II is largely descriptive and focuses on two aspects of Obergefell: (1) the Court's clarification that adult, private, consensual, same-sex sexual intimacy is a fundamental right, protected by the U.S. Constitution's Fourteenth Amendment Due Process Clause and (2) the Court's recognition that leading mental health and medical groups consider sexual orientation to be immutable. Part III examines how courts and the EEOC have treated sexual orientation discrimination under Title VII and contains a normative discussion which argues—consistent with the position of other commentators, some courts, and the EEOC—that sexual orientation …