Title VII at Age 50: Still Room for Creativity? Developing New Defenses and Testing New Claims


New Substantive Uses of Title VII -

Sexual Orientation And Gender Identity:

..Issue: Whether Title VII prohibits discrimination on the basis of sexual orientation or gender identity.

..Statutory Authority: Presently, Title VII does not expressly recognize sexual orientation or gender identity as a protected class. In November 2013, however, the Senate passed the Employment Non-Discrimination Act (ENDA) and referred it to the House of Representatives. The law, as proposed, would expressly prohibit employment discrimination on the basis of an individual’s actual or perceived sexual orientation or gender identity. It is limited, however, to disparate treatment claims. It also contains an exemption for religious organizations and prohibits EEOC from compelling the collection or production of statistics on sexual orientation or gender identity. Employment Non-Discrimination Act of 2013, S. 815, 113th Cong. §§ 4, 6, 7 (2013). Speaker of the House John Boehner has said that he will not bring the bill to the floor because it “will increase frivolous litigation and cost American jobs, especially small business jobs.” Jeremy W. Peters, Bill Advances to Outlaw Discrimination, N.Y. TIMES, Nov. 14, 2013.

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