Indiana Law Journal

Document Type


Publication Date

Summer 2018

Publication Citation

93 Indiana Law Journal 895 (2018)


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 Title VII. The tide may be turning on this trend. Following the Equal Employment Opportunity Commission’s (EEOC) decision to recognize sexual orientation discrimination as sex discrimination, a number of cases emerged, claiming discrimination on the basis of sexual orientation under Title VII. The real tension in this new effort to reconsider sexual orientation as a protected status does not lie in the legal reasoning that it requires. This has been relatively clear and has received a fair amount of attention since the Court passed down its decision in Price Waterhouse v. Hopkins. The tension lies in the fact that Congress has considered adding sexual orientation to Title VII numerous times in the past decade, but the supporters of the addition have failed to gain passage. While public support for protecting homosexuality under Title VII has been strong for more than twenty years, and the legal reasoning supporting extension of Title VII to sexual orientation is evident in legal precedent, many would consider judicial extension of Title VII to sexual orientation protection a usurpation of legislative authority. This Note examines the implications of judicially extending Title VII protection to claims of sexual orientation and concludes that doing so constitutes a legitimate, if not ideal interpretation. This examination will take place in three parts. Part I includes a review of the history of Title VII as it concerns sexual orientation discrimination and its current status. Part II then quickly suggests the method that the Court could use for extending Title VII, consistent with the plain language and apparent congressional intent. Finally, Part III analyzes the implications for the legitimacy of the Court in recognizing sexual orientation discrimination through the lenses of the counter-majoritarian difficulty and statutory corollaries to the living constitution and originalism. In conclusion, I will suggest that viewed through these lenses, a judicial extension of Title VII to include sexual orientation would be viewed as legitimate and not as the usurpation that has concerned many courts.