Publication Date



More than thirty years ago, LGBT employees across
the United States sought relief from discrimination
under Title VII of the Civil Rights Act, claiming
protection under the statute's guarantee that employers
may not discriminate "because of sex." The federal
Courts of Appeals responded with a unanimous voice.
Title VII does not cover sexual orientation.
That conclusion was neither shocking nor
controversial in the early 1980's, but the Judiciary's
interpretationof Title VII has changed fundamentally in
the decades since. Multiple Supreme Court decisions
and newly recognized theories of sex discriminationhave
called into question the notion that Title VII has nothing
to do with sexual orientation. More significantly, the
Equal Employment Opportunity Commission now
maintains the position that discrimination based on
sexual orientation is a form of sex discrimination,
prohibited by the Civil Rights Act.
The federal courts, however, are conflicted. The law
of employment discrimination may have shifted, but
one venerable principle remains the same: stare decisis.
Faced with their own longstanding precedent on this
issue, the Circuits have shown reluctance to overturn
decisions that are directly on point. This Note seeks to
dispel their hesitation.

Intervening decisions of the Supreme Court, most
notably Price Waterhouse v. Hopkins, have removed the
legal basis of these earlier appellate cases. The policies
underlying stare decisis, which are rooted in concerns
of stability and reliance, do not support continued
adherence to a view of Title VII that may conflict
sharply with binding decisions of the Supreme Court.
The Courts of Appeals should not invoke stare decisis to
avoid this issue, and instead should evaluate the merits
of this issue anew, taking into account intervening
developments in the law.