Defining sex-based discrimination among strife between the Justice Department and the EEOC
| Author | Kelsey R Ruszkowski |
| Published date | 01 September 2019 |
| Date | 01 September 2019 |
| DOI | 10.1177/1358229120904621 |
| Subject Matter | Articles |
Article
Defining sex-based
discrimination among
strife between the
Justice Department
and the EEOC
Kelsey R Ruszkowski
Abstract
In the last few decades, US Supreme Court rulings have made strides for the advance-
ment of the LGBT community. However, this community has yet to enjoy equality in the
workplace due to its exclusion from Title VII protection. This article details the recent
conflict between the Equal Employment Opportunity Commission (EEOC) and the
Department of Justice in interpreting Title VII and how this conflict may make it difficult
for the Supreme Court to reach a broad ruling concerning sex discrimination under Title
VII. The EEOC relies on Supreme Court precedent concerning sex stereotyping to
extend Title VII protection to sexual orientation while the Justice Department employs a
textualist argument to support a narrow interpretation of sex. However, changing
societal norms and advancing neuroscientific research support the conclusion that sexual
orientation, gender identity, and expression is included under “sex” even when using
textualism to interpret Title VII. Given that the Supreme Court is unlikely to defer to the
EEOC’s interpretation, these arguments stemming from the social sciences may provide
the support the Court needs to justify a decision to end employment discrimination
against the LGBT community and gender nonconformists in a way that is consistent with
the positions of both the EEOC and the Justice Department.
Gibson, McAskill & Crosby, LLP, Buffalo, NY, USA
Corresponding author:
Kelsey R Ruszkowski, Gibson, McAskill & Crosby, LLP, 69 Delaware Ave #900, Buffalo, NY 14202,
USA.
Email: kruszkowski@gmclaw.com
International Journalof
Discrimination and theLaw
2019, Vol. 19(3-4) 200–215
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1358229120904621
journals.sagepub.com/home/jdi
Keywords
Sexual orientation, Title VII, gender bias, stereotype, gender-based discrimination,
employment discrimination, physiological sex
Introduction
Through its case law, the Supreme Court has determined that certain classes deserve
heightened scrutiny when a law or reg ulation implicates the protect ed class.
1
Strict
scrutiny is also applied when a restriction effects a fundamental constitutional right.
2
Fundamental rights include those rights enumerated in the Bill of Rights, in other
sections of the Constitution, or those rights identified by the Supreme Court as falling
under the Due Process Clause.
3
Unlike those rights identified in the Constitution,
fundamental rights found by the Court but not expressed in the Constitution can be
revoked by the Supreme Court.
4
For a law to pass the Court’s strict scrutiny review, it
must serve a compelling government interest, be narrowly tailored to serve that inter-
est, and must also be the least restrictive means of achieving that interest.
5
These
suspect, or protected, classifications include such classifications based on race,
national origin, and religion. A lessened level of scrutiny, referred to as intermediate
scrutiny, is used for quasi-suspect classifications such as gender and birth legitimacy.
6
Whether a class is protected can depend on several factors, two of which include that
the class experienced a long history of discrimination or the discrimination is based on
an immutable trait seen within the class.
The legislative branch has passed various antidiscrimination laws which protect
certain named groups. Title VII of the Civil Rights Act of 1964 explicitly forbids
discrimination based on race, religion, national origin, and sex.
7
Various other federal
laws, typically involving employment, outlaw discrimination based on age, pregnancy
status, citizenship, familial status, disability status, and veteran status.
8
Unlike in some
other federal laws, Congress has not explicitly included sexual orientation, gender iden-
tity, and expression (hereinafter “SOGIE”) as a protected classification under Title VII
of the Civil Rights Act.
9
While Title VII names “sex” as protected, it does not define
what counts as sexual discrimination.
10
To attempt to remedy Title VII’s apparent lack of protection, the Employment Non-
Discrimination Act has been introduced in nearly every Congress since the 1990s.
11
Initially, this bill was designed to prohibit employment discrimination based on sexual
orientation and was later expanded to include discrimination based on gender identity.
12
Unfortunately, this act has continually failed to pass both houses of Congress. Currently,
an executive order passed by former Presidents Clinton and Obama has temporarily
filled a portion of the gap left by Congress’s failure to pass nationwide protection for
members of the LGBTQ community.
13
However, their executive orders only prohibit
discrimination based on sexual orientation or gender identity by federal employers and
their contractors, leaving state and private employees unprotected by federal mandate.
14
Now, the Supreme Court has the opportunity to do what Congress has tried to do for
Ruszkowski 201
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