The courts have struggled with the wording in Title VII for a couple of decades. Title VII clearly prohibits discrimination based on sex. Does that mean Title VII prohibits discrimination based on sex orientation? If an employer terminate someone because he is gay, how is that not discrimination based on sex?

The challenge is that the legislative history expressly says Congress did not intend for Title VII to apply to homosexual persons. But, sex is sex, right? I wrote about this challenge here, when the Fifth Circuit recently declined to stray from the decision in Oncale v. Sundowner Offshore Services, Inc., 523 US 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Oncale allows a plaintiff to proceed with a claim based on gender stereotyping. But, gender stereotyping will not apply to cases of explicit homosexual discrimination. Last Fall, the U.S. Supreme Court accepted two cases addressing whether “sex” really means sex, Bostock v. Clayton County and Altitude Express v. Zarda. In both cases, the employers clearly fired two employees due to their sexual orientation. See SCOTUS blog for more information here.

Perhaps, the best argument the employers can make is that the plaintiff’s case is best addressed by Congress. But, until Congress addresses it, the “sex means sex” argument will continue to persist.