Title VII - Competing Approaches to Establishing a Prima Facie Case for Discrimination Based on Sexual Orientation Under Title VII

Abstract

Title VII attempts to eliminate discrimination at the workplace on the basis of race, color, religion, sex, and national origin. Generally the definitions of race, color, religion and national origin are well settled, the same cannot be said for the definition of “sex”. This ambiguity has left the question of whether discrimination on the basis of sexual orientation comes within this definition. This Note argues that procedurally, federal courts generally take three approaches to claims alleging discrimination based on sexual orientation. Under the board approach, when a plaintiff alleges discrimination based on sexual orientation, the court will understand the claim as “inherently” because of sex and allow the claim to proceed. Under the narrow approach, when a plaintiff alleges discrimination based on sexual orientation, the court will grant 12(b)(6) motions and dismisses all claims brought on the basis of sexual orientation with prejudice, because sexual orientation is not “inherently” because of sex. Under the intermediate approach, the court grants 12(b)(6) without prejudice and allows plaintiff leave to amend to remove any mention of sexual orientation and properly plead gender stereotyping. Additionally, this Note argues that the broad approach is better than both the narrow and the intermediate approach.