Employment lawyers can recite Title VII of the 1964 Civil Rights Act in their sleep. Title VII makes it unlawful for an employer to discriminate against any individual because of the individual’s race, color, religion, sex, or national origin. Straightforward, right? Recently, however, Title VII has been anything but that for employers. The confusion and uncertainty stem from a certain three-letter word: sex. The main question for employment lawyers is what is encompassed under the Title VII umbrella of sex discrimination—specifically, whether sexual orientation is covered. It is safe to say that no one currently knows the answer to that question.
In deciding what constitutes obscenity, Justice Potter Stewart uttered the famous line “I know it when I see it.” If only defining sex discrimination were so simple. Unfortunately, what constitutes sex discrimination under Title VII is not clearly defined, and the interpretation changes constantly. Much of the uncertainty can be directly attributed to the changing political climate. Under the Obama administration, rights for the lesbian, gay, bisexual, and transgender community soared to unprecedented levels. The attorney general at the time, Eric Holder, issued a memorandum stating that the Justice Department took the position that Title VII encompasses discrimination based on gender identity. However, this opinion was reversed by the current attorney general, Jeff Sessions.