Kevin Spencer Pierson, KLJ Online Content Manager
Title VII of the 1964 Civil Rights Act federally “prohibits employment discrimination based on race, color, religion, sex and national origin.” There is a current belief among social activists that that the language of this statute, specifically the term “sex,” can and should offer protection from employment discrimination based on sexual orientation. While courts have continuously denied this interpretation of the term “sex,” a broader look at the case law surrounding Title VII and sex discrimination makes this constant denial of protection both confusing and problematic.
Courts have stated that “the ordinary and common meaning” of sex should be used when analyzing a Title VII claim. Congress has continuously failed to expand the statute to include sexual orientation. As a result, several opinions point to this congressional inaction as evidence that sex discrimination is not intended to encompass sexual orientation. Recently this precedent has been challenged by the non-binding ruling of the Equal Employment Opportunity Commission (EEOC) in Baldwin v. Foxx. While EEOC rulings are “entitled to deference only to the extent that they have power to persuade,” and courts have explicitly rejected the Baldwin analysis, the recent ruling has “created a groundswell of questions about the rationale for denying sexual orientation claims while allowing nearly indistinguishable gender non-conformity claims.”
The Supreme Court has ruled that Title VII protects those who are discriminated based on not conforming to standard gender roles. This sex stereotyping or gender based discrimination occurs whenever an employer assumes how a person should act based on their gender. This protection extends to both sexes, regardless if it is an “effeminate” man or “masculine” woman. Numerous courts have mentioned it is difficult to distinguish between claims based on sexual orientation discrimination versus those based around sex stereotyping. Yet still, courts rule that Title VII claims based on sex stereotyping cannot “bootstrap” as sexual orientation discrimination claims, and while difficult, it is not impossible to separate the two. Certain decisions, and the rationales justifying them, have led to “the absurd conclusion” that “the law protects effeminate men from employment discrimination, but only if they are (or are believed to be) heterosexuals.” There is even a split on whether such a conclusion is insane, as courts have differed in whether the sexual orientation of the plaintiff can actually be the reason for barring a claim.
Currently, those being discriminated against based on sexual orientation can only succeed with a Title VII claim by adopting a strategy similar to the plaintiff in Prowel v. Wise Bus. Forms, Inc.. In the case, the plaintiff had to show his harassment at his factory job was based on his feminine mannerisms, such as his love to talk “about art and interior design,” or that he “pushed the buttons on his factory equipment ‘with pizzazz.’” This strategy has resulted in many successful Title VII claims of sex discrimination. This sends a worrisome message: those who are gay, lesbian, or bisexual can only be protected from employment discrimination if they adhere to the common stereotypes and roles that society expects of them. The LGBT community is already disproportionately stereotyped in the media, and the court system protecting only those who adhere to the status quo is problematic, to say the least. In declining to accept the ruling in Baldwin, the court in Hively v. Ivy Tech Cmty. Coll., S. Bend noted the uncomfortable reality these kinds of rulings bring:
In sum, the distinction between gender non-conformity claims and sexual orientation claims has created an odd state of affairs in the law in which Title VII protects gay, lesbian, and bisexual people, but frequently only to the extent that those plaintiffs meet society’s stereotypical norms about how gay men or lesbian women look or act […]. By contrast, lesbian, gay or bisexual people who otherwise conform to gender stereotyped norms in dress and mannerisms mostly lose their claims for sex discrimination under Title VII, although why this should be true is not entirely clear.
The Seventh Circuit Court pointed to the fact that they, along with the EEOC and many federal courts, did not condone discrimination “solely based on who they date, love, or marry,” but that they were limited by precedent in determining the case. The court also stated that society will not be able to continue to “condone a legal structure” that allows employment discrimination based on sexual orientation, and that maybe the “writing is on the wall.” However, as many courts before them, they simply added to the growing precedent of issuing judicial protections only to those LGBT citizens who adopt the roles expected of them. “Until the writing comes in the form of a Supreme Court opinion or new legislation,” courts will continue to deny non-stereotypical LGBT citizens protections from treatment that courts themselves claim to despise. While the writing may be on the wall, it seems that courts will continue to ignore it, regardless of the absurd and inconsistent results.
 J.D. expected May 2018.
 42 U.S. § 2000e-2 (West).
 Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984).
 Equality Act, H.R. 3185, 114th Cong. (2015); Employment Non-Discrimination Act, H.R. 1755, 113th Cong. (2013); Employment Non-Discrimination Act, H.R. 1397, 112th Cong. (2011); Employment Non-Discrimination Act, H.R. 3017, 111th Cong. (2009).
 DeSantis v. Pac. Tel. & Tel. Co., 608 F.2d 327, 329 (9th Cir. 1979); Nichols v. Azteca Rest. Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1076 (9th Cir. 2002).
 Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641, at *5, *10 (July 16, 2015).
 Hinton v. Virginia Union Univ., No. 3:15CV569, 2016 WL 3922053, at *5 (E.D. Va. July 20, 2016); See Hively v. Ivy Tech Cmty. Coll., S. Bend, 830 F.3d 698 (7th Cir. 2016).
 Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, (1978)).
 Centola v. Potter, 183 F. Supp. 2d 403, 408 (D. Mass. 2002).
 Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005).
 See, e.g., Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291 (3d Cir. 2009) (“[T]he line between sexual orientation discrimination and discrimination ‘because of sex’ can be difficult to draw.”); Centola v. Potter, 183 F. Supp. 2d 403, 408 (D. Mass. 2002) (“the line between discrimination because of sexual orientation and discrimination because of sex is hardly clear.”); Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1065 (7th Cir. 2003) (“We recognize that distinguishing between failure to adhere to sex stereotypes (a sexual stereotyping claim permissible under Title VII) and discrimination based on sexual orientation (a claim not covered by Title VII) may be difficult. This is especially true in cases in which a perception of homosexuality itself may result from an impression of nonconformance with sexual stereotypes.”).
 Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005).
 Hamm, 332 F.3d at 1067 (Posner, J. concurring).
 Estate of D.B. Briggs v. Thousand Islands Cent. Sch. Dist., 169 F. Supp. 3d 320, 332-33 (N.D.N.Y.2016) (“[T]he critical fact under the circumstances is the actual sexual orientation of the harassed person. If the harassment consists of homophobic slurs directed at a homosexual, then a gender-stereotyping claim by that individual is improper bootstrapping. If […] the harassment consists of homophobic slurs directed at a heterosexual, then a gender-stereotyping claim by that individual is possible.”); contra City of Belleville, 119 F.3d at 574, 575, 588 (“[W]e have never made the viability of sexual harassment claims dependent upon the sexual orientation of the harasser, and we are convinced that it would be both unwise and improper to begin doing so.”).
 Prowel, 579 F.3d 291-92.
 See, e.g., Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001) (discrimination found to be based on not acting as a “man should,” which included being effeminate and not pursue female friends sexually); Reed v. S. Bend Nights, Inc., 128 F. Supp. 3d 996, 1001 (E.D. Mich. 2015) (supervisor of lesbian employee testified that employee “dressed more like a male” and her “’demeanor’ was a ‘little more mannish.’”); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1217-20 (D. Or. 2002) (lesbian discriminated for dressing in male clothing and not acting like employer felt a stereotypical woman should).
 See generally Stereotypes, ALGBTICAL.org, (Last visited January 24, 2017), http://www.algbtical.org/2A%20STEREOTYPES.htm.
 See generally Ben Beaumont-Thomas, Hollywood Criticized for Negative Portrayal of LGBT Characters, The Guardian (July 23, 2014), https://www.theguardian.com/film/2014/jul/23/hollywood-criticised-lgbt-gay-characters-glaad.
 Hively, 830 F.3d at 711.
 Id. at 718.
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