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Unpublished Paper
Cracks in the Shield: The Necessity of the Employment Non-Discrimination Act
ExpressO (2014)
  • James N Bolotin

This paper argues that legislation protecting homosexuals from employment discrimination is necessary, despite hopeful arguments that the text of Title VII should or can already protect against discrimination based on sexual orientation. The paper discusses how the precedent of the federal courts has gone too far in the wrong direction to believe that they will fix this interpretation problem on their own. Furthermore, it posits that the passage of ENDA or similar legislation will successfully lessen the prevalence of this type of discrimination.

Part I considers the history of Title VII’s “because of sex” protection. This includes a short discussion of theories of legislative intent, and an examination of how courts have defined “sex” in the context of Title VII. The paper looks then at a string of mostly unsuccessful cases where homosexuals or other sexual minorities (lesbians, gays, bisexuals, and transgender and intersex individuals) attempted to bring claims of discrimination under Title VII. Finally, the paper analyzes the evolution of the courts’ interpretation of Title VII’s prohibition of discrimination “because of sex”, including cases where plaintiffs, who were not necessarily sexual minorities, had success in ways that could help those claiming discrimination based on sexual orientation by using established mechanisms, such as the Price Waterhouse sex stereotyping framework.

Part II discusses the many states that have taken this issue into their own hands, by passing state legislation that bans discrimination on the basis of sexual orientation and/or gender identity. The paper analyzes examples of state statutes, including an examination of differences and similarities in various state statutes. This section concludes that, overall, state legislation has been successful in combatting this type of employment discrimination; however, a national law could be equally beneficial, if not more so, because there are many instances where the state laws are different and would benefit from federal clarification.

Part III analyzes a proposed federal ban on discrimination based on sexual orientation. This begins with a history of past legislative attempts, before examining the current form of ENDA and its prospects of success in Congress. After discussing the exact language of ENDA’s proposed protections, this Part considers the likely effects of ENDA on a national scale upon passage, and concludes that the overall effects of passing legislation similar to ENDA will be overwhelmingly positive. Lastly, this Part recommends some amendments and changes to ENDA that could further assure its positive effects, and cure problematic issues that have arisen in states with their own legislation.

  • employment,
  • employment discrimination,
  • employment non-discrimination act,
  • sexual minorities,
  • sexual minority,
  • homosexual,
  • transexual,
  • transgender,
  • gay,
  • lesbian,
  • civil rights,
  • discrimination,
  • ENDA
Publication Date
July 15, 2014
Citation Information
James N Bolotin. "Cracks in the Shield: The Necessity of the Employment Non-Discrimination Act" ExpressO (2014)
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