CBA Record September 2017

Y O U N G L A W Y E R S J O U R N A L

EXPANDING THE SCOPE OF TITLE VII

Will Sexual Orientation Become a New

Basis for Employment Discrimination?

By Patricia N. Jjemba

he Civil Rights Act of 1964, 42

U.S.C.A. § 2000e-2(a)(2), is often

referenced in connection with its

historic impact on racial discrimination

laws here in the United States. Title VII

of the influential statute extends the leg-

islation to the workplace. And while race

is an essential class protected under the

provision, so too are the other categories

outlined in the statute. Sex as a protected

class, in particular, has been highlighted

lately. Given that laws prohibiting same-sex

marriage have been held to be unconsti-

tutional, it seems natural to now consider

expansion of the term “sex” as it relates to

sex discrimination in the workplace and

consider whether it includes discrimination

on the basis of sexual orientation.

Historically, various courts of appeals

have not interpreted Title VII as encom-

passing sexual orientation as a prohibited

form of sex discrimination. The Supreme

Court’s silence on the issue resulted in a

split on the issue among circuits, alliance

groups, and government agencies. There

are alluring arguments on both sides of the

issue; however, as with most monumental

turns in civil rights laws, it may take a

case with the right set of facts to enter the

judicial scene.

Under Title VII of the Civil Rights Act of 1964:

It shall be an unlawful employment practice for an employer—

To limit, segregate, or classify his employees or applicants for employment in any way which would deprive

or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an

employee, because of such individual’s race, color, religion, sex, or national origin.

SEPTEMBER 2017