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*Erica Hausdorff

This October, the Supreme Court will decide a historic circuit split regarding sexual orientation discrimination under Title VII.[1] At the heart of the federal circuit split, courts are divided amongst a question of statutory interpretation. The First and Eleventh Circuit abide by a textualism approach to interpreting Title VII. The Second and Seventh Circuit consider the purpose of Title VII and stray from a textualism approach. Though neither forms of statutory interpretation are necessarily incorrect, a textualism approach to interpreting Title VII fails to consider the purpose behind the statute. Title VII sought to eliminate the principal evil of unfair employment practices.[2]

The First and Eleventh Circuit practically ignored vital Supreme Court precedent instructing lower courts that Title VII must be interpreted broadly.[3] Additionally, the First and Eleventh Circuit punt the issue to Congress and suppose that it is Congress’s responsibility to amend the statute to include sexual orientation. Though, in taking this approach, the courts fail to protect individuals who are being discriminated against based on their sex plus their sexual orientation. Moreover, it is foolish to assume that Congress will amend the statute to include sexual orientation either as its own protected class or as a subset of sex discrimination. Though it is likely that Congress did not create the statute with the intention to protect members of the LGBTQ+ community, Congress is now equipped and knowledgeable about the unfair treatment to the homosexual community. Even with this understanding, Congress refuses to amend the statute. As such, it must be the responsibility of both the Supreme Court and lower courts to prohibit discrimination based on sexual orientation.

Justice Antonin Scalia seemed to understand the distinction between textualism and purposive when stating, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provision of our laws rather than the principal concerns of our legislators by which we are governed.”[4] It is unsurprising that both the Seventh and Second circuits decisions cite to Justice Scalia’s statement.

The Seventh and Second Circuit correctly interpret the controversial phrase “because of sex.” First, the Seventh and Second Circuit’s holdings and analysis consider the bigger picture behind Title VII. Each court routinely mentions Title VII’s broad protections. Second, the Seventh and Second Circuit properly considered imperative Supreme Court precedent. Not only do the courts consider the broader protections given to the LGBTQ+ community under all constitutional provisions, but both courts look to the Supreme Court’s decisions regarding Title VII. The Supreme Court’s decisions in both Oncale and Price Waterhouse are instructive and telling as to the correct method of statutory interpretation.[5] In both cases, the Supreme Court recognized viable claims under Title VII that were not expressly written in the statute. Conversely, how can one argue that sexual orientation discrimination does not deserve the same protection and interpretation under Title VII?

Moreover, the Seventh and Second Circuit acknowledged and accepted the EEOC’s interpretation of Title VII. Congress tasked the EEOC with interpreting and enforcing employment discrimination laws. The EEOC is a unique federal agency in that it was solely created for one area of the law. As such, courts should look to the EEOC’s understanding and interpretation of employment discrimination laws. The EEOC is in the best position to understand both the purpose and necessity for protecting certain individuals from discriminatory treatment. The EEOC is clear in its conclusion that sexual orientation discrimination is prohibited under Title VII. [6]

While the Second and Seventh Circuit did not cite to any state legislative material, both decisions align with half the states. Currently, twenty-five states explicitly enumerate sexual orientation as a protected class.[7] This trend toward greater protection for the LBGTQ+ community is recent and growing. Presumably, as more federal courts consider whether sexual orientation is protected under Title VII, state legislation will continue to provide protection for the LGBTQ+ community. Ultimately, the shift in the federal courts and state legislatures should push the Supreme Court to prohibit sexual orientation discrimination under Title VII. One would hope that their decision would fall in line with the Seventh and Second Circuits holdings and the EEOC.

*J.D. Candidate, 2020, FIU College of Law.

[1] Alex Swoyer, Supreme Court to decide whether Civil Rights Act covers ‘sexual orientation’, The Washington Times (Sept. 3, 2019),

[2] Griggs v. Duke Power Co., 401 U.S. 424, 429­–36 (1971).

[3] Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993).

[4] See Mark Joseph Stern, Thanks Scalia for the Revolutionary EEOC Workplace Discrimination Decision, Slate, (April 5, 2019)

[5] See Student Project: Appearance Policies as Sex Discrimination in the Workplace: Price Waterhouse v. Hopkins, Pace Law School Library, (April 5, 2019) In Price Waterhouse, the Supreme Court determined that sex-stereotyping is a method of proving sex discrimination under Title VII.

[5] See Stern, supra note 4. In Oncale, the Supreme Court ruled that male on male sexual harassment is discrimination because of sex under Title VII.

[6] Baldwin v. Foxx, 2015 EEOPUB LEXIS *1, *22 (2015).

[7] Non-Discrimination Laws, Map,