Circumventing Congress: The Use of Sex-Stereotyping Theory to Expand Protected Classes Under Title VII

The Equality Act of 1974 was the first legislation introduced in Congress that would have made sexual orientation a protected category under Title VII. Another push was made to expand the protections provided by federal law with the Employment Non-Discrimination Act, which was introduced in 1994. To date, all such legislative attempts to expand the protections provided by Title VII have failed. Nonetheless, the courts have expanded Title VII’s protections by approving the sex-stereotyping theory of liability, and the EEOC has determined that it is possible for the scope of protection provided by Congress to grow beyond the limits established by the plain statutory language and the intentions indicated by legislative activities. “Discrimination on the basis of sex” does not have the same meaning today that it did when it was adopted by Congress in 1964, or when it was later amended by the PDA in 1978. It seems very likely that this evolution will continue even without legislative action, particularly given national political polarization and rapidly changing societal norms. It is clear that courts (to varying degrees) and the EEOC have rejected the notion expressed in Smith v. Liberty Mutual Ins. Co. that congressional action would be necessary to justify interpreting “because of sex” to include gender, gender identity, and sexual orientation.

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