Sex: Sexual Orientation, Sex Stereotyping, and Title VII

Abstract

The United States Supreme Court recently heard oral arguments in Altitude Express v. Zarda, a case that addresses whether Title VII’s prohibition of discrimination “on the basis of sex” prohibits sexual orientation discrimination. Relying on three related lines of reasoning, the United States Court of Appeals for the Second Circuit had held that it did. First, sexual orientation discrimination would not have occurred “but for” the employee’s sex; second, sexual orientation discrimination relies on the sex-stereotype that individuals should be attracted to individuals of the opposite sex; and third, sexual orientation discrimination is a form of prohibited associational discrimination. This Article opines that the strongest and most compelling of these three arguments is sex stereotyping since gays and lesbians fail to conform to the ultimate stereotype that real men are sexually attracted to women and real women are sexually attracted to men. This stereotype is a means of maintaining anachronistic and outdated gender roles for men and women.