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

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.

T 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.

40 SEPTEMBER 2017