The LGBT community has benefitted from a rapid change in public perception. In the past few decades alone, the Supreme Court has greatly expanded the civil rights of queer people by decriminalizing homosexual conduct and recognizing gay marriage. Despite this progressive social setting, LGBT employees have yet to receive full protection from employment discrimination. The EEOC and two circuit courts have attempted to remedy this paradoxical legal landscape by extending protection to the LGBT community under Title VII’s “because of . . . sex” provision, using three principle methods of statutory interpretation to arrive at this conclusion. These methods of interpretation—though admirable in their purpose—conflate sex, gender, and sexual orientation, relying on exclusive binaries that do not reflect the vast continuum of sexual minorities.
These developments in the law have coincided with an expanding queer community. From LGBT to LGBTQIA+, the number of sexual identities has grown rapidly. Even in those states that currently have anti-discrimination statutes protecting LGBT employees, a wide array of sexual minorities are not protected. The common understanding of what constitutes sexual orientation has been heavily influenced by efforts to create a stable and immutable queer identity. Consequently, restrictive statutory definitions of sexual orientation fail to anticipate new forms of employer prejudice that are likely to arise as the queer community progresses. This Note critically evaluates existing anti-discrimination law and argues for forward-looking legislation which anticipates these new forms of employer discrimination toward an evolving queer community. Read More.