The Meaning of “Sex”: Using Title VII's Definition of Sex to Teach About the Legal Regulation of Business

• Date: 01 December 2018
• Author: Debbie Kaminer
• Published date: 01 December 2018
• DOI: http://doi.org/10.1111/jlse.12070

Journal of Legal Studies Education

Volume 35, Issue 1, 83–122, Winter 2018

The Meaning of “Sex”: Using Title

VII’s Definition of Sex to Teach

About the Legal Regulation of

Business

Debbie Kaminer∗

I. INTRODUCTION

Title VII of the Civil Rights Act of 1964 prohibits discrimination “because

of . . . race, color, religion, sex or national origin.”1It does not explicitly

prohibit discrimination based on “sexual orientation” and until very recently

courts almost uniformly held that “sex” did not include “sexual orientation.”2

For years, when I taught law to both undergraduate and graduate business

students, I would explain that while some state laws prohibit discrimination

based on sexual orientation, federal law does not do so.

However, it is no longer clear that this statement is correct. The U.S.

Court of Appeals for the Seventh Circuit was recently the first federal ap-

pellate court to hold that the term “sex” in Title VII includes sexual orien-

tation.3Similarly, a recent EEOC Opinion, Baldwin v. Foxx, held that Title

VII’s prohibition on discrimination because of sex includes discrimination

∗Professor of Law, Zicklin School of Business, Baruch College (CUNY). J.D., Columbia Law

School; B.A., University of Pennsylvania. This case study was developed during the spring 2017

Hybridization Seminar at the Baruch Center for Teaching and Learning, and I would like to

thank my colleagues who participated in the seminar for their helpful feedback. This case study

was a finalist at the 2017 ALSB Charles M. Hewitt Master Teacher Competition.

142 U.S.C. § 2000e-2(a)(1).

2See generally Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII,63AM.U.L.

REV. 715, 722 nn.33–34 (2014) (discussing how plaintiffs who “look gay” are often protected by

Title VII but those thought or known to be gay are not).

3Hively v. Ivy Tech Cmty. Coll. of Ind., 2017 WL 1230393 (7th Cir. Apr. 4, 2017).

C2018 The Author

Journal of Legal Studies Education C2018 Academy of Legal Studies in Business

83

84 Vol. 35 / The Jour nal of Legal Studies Education

based on sexual orientation.4On the other hand, a three-judge panel of the

U.S. Court of Appeals for the Second Circuit recently held that only the full

Second Circuit had the power to overturn circuit precedent holding that

sexual orientation claims were not cognizable under Title VII.5The full Sec-

ond Circuit has granted an en banc rehearing and will determine whether

discrimination because of sex, encompasses discrimination based on sexual

orientation.6

This article uses the question, “Does Title VII’s prohibition on dis-

crimination because of ‘sex’ include a prohibition on discrimination based

on sexual orientation?” as a means of teaching about the complexities of

the legal regulation of business. While at first glance this might appear

to be a simply yes or no question, it in fact encompasses numerous legal

concepts that business students need to understand and is a fascinating

real-world “case study.” In his classic book, What the Best Teachers Do,Ken

Bain has articulated the importance of finding a captivating and engag-

ing question as the first step when teaching,7and the issue of discrimi-

nation based on sexual discrimination is a timely question that captures

my students’ attention. Additionally case studies are an excellent teaching

method, and the literature has articulated how case studies improve student

learning.8

4Appeal No. 0120133080, 2015 WL 4397641 (E.E.O.C. July 16, 2015). This decision is binding

only on workplaces in the federal sector. For a discussion of the deference courts should give Bald-

win, see generally, Ryan H. Nelson, Sexual Orientation Discrimination Under Title VII After Baldwin v.

Foxx,72W

ASH.&LEE L. REV.ONLINE255 (2015), http://scholarlycommons.law.wlu.edu/wlulr-

online/vol72/iss2/2.

5Christiansen v. Omnicom Group, 2017 WL 1130183 (2d Cir. 2017). A panel of the Eleventh

Circuit also recently held that it was bound by precedent and could not recognize sexual ori-

entation discrimination claims under Title VII. See Evans v. Georgia Reg’l Hosp., 850 F.3d 1248

(11th Cir. 2017).

6Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017). This area of the law is rapidly developing,

which is why it provides a compelling and engaging topic for a case study. However, this also

means that professors may need to modify their lessons as the law develops.

7KEN BAIN,WHAT THE BEST COLLEGE TEACHERS DO100 (2004). (“An intriguing question or

problem is the first of five essential elements that make up the natural critical learning environ-

ment.”).

8“A recent meta-analysis of over 1,200 studies comparing cooperative learning strategies versus

lecture methods shows case studies improve student performance.” Lamar Odom & Analco

Gonzalez, Kelo v. City of New London: An Ideal Case to Teach Legal Principles,25J.L

EGAL STUD.

EDUC. 343, 347 (2012). Id. at 347 (citing Clyde Freeman Herreid, Using Case Studies to Teach

Science (2005), http://www.actionbioscience.org/education/herreid.html).

2018 / The Meaning of “Sex” 85

I have used versions of this lesson in courses I teach to MBA students

on the Legal and Ethical Environment of Business. I use this lesson to pull

together subjects that we have covered throughout the semester, including

statutory interpretation, jurisdiction, administrative law, stare decisis, sepa-

ration of powers, the Commerce Clause, the Supremacy Clause, and ethical

reasoning. The case study could also be used in an undergraduate legal en-

vironment course. Since this is also a timely and important topic, that may

well reach the U.S. Supreme Court, I use a version of this lesson in an under-

graduate course I developed and teach on Employment Law.

This lesson includes a number of overlapping learning goals. The first

goal is to develop students’ understanding of the complexities associated

with the legal regulation of business in the United States. This case study

is an excellent means of doing so, since it involves numerous interrelated

legal issues. Real-world legal dilemmas, of course, often have many parts to

them, and it is important for students to understand how to address them.

In doing this assignment, students will improve their understanding of the

Commerce Clause, preemption, separation of powers, jurisdictional issues,

administrative law, and stare decisis. This lesson will also develop students’

understanding of how courts interpret statutory terms. Students will also

analyze how different courts can interpret the same statute in a different

manner as well as how the majority opinion, concurrence, and dissent can

all reach different conclusions.

Second, this case study also raises significant ethical issues and devel-

ops students’ ability to analyze employment discrimination laws generally

(as well as the specific issue of discrimination based on sexual orientation)

from competing ethical frameworks. Students distinguish between whether

discrimination based on sexual orientation is unethical and illegal, and ana-

lyze which branch of government should decide if it is illegal. Using a case

study that raises overlapping legal and ethical issues addresses concerns of

the “silo” nature of education. In addition to law and ethics, professors could

include material on legal history, gender studies and psychology if they so

choose.

Third, with the increased focus on hybrid teaching at many universities,

it is important to develop assignments that further learning goals in a hybrid

format, and this assignment does so. As part of this assignment, students

answer a series of questions by annotating statutes and cases using a free

online tool, hypothes.is,9before we meet in class. This annotation exercise

9See https://web.hypothes.is/.