Over the past few years, the so-called “Don’t Ask, Don’t Tell” policy has dominated headlines, courtrooms, and policy discussions, culminating in its repeal in December 2010. Comparatively, little public attention has been given to non-military employment discrimination based on sexual orientation. In some respects, this may be unsurprising: a 2007 poll found that only one-third of American adults were aware that federal law, as currently interpreted, does not provide protection for employees on the basis of sexual orientation. At the same time, public opinion polls suggest that Americans do not find the idea of protection against employment discrimination based on sexual orientation particularly controversial. A 2008 Gallup poll found that support for homosexuals having equal rights in job opportunities has jumped from fifty-six percent in 1977 to eighty-nine percent.
While Americans are largely unaware of the lack of federal protection against sexual orientation discrimination, courts are almost hyperaware, frequently reiterating that Title VII does not protect against discrimination on the basis of sexual orientation. Courts have even gone so far as to reject the claims of plaintiffs with legitimate theories of discrimination under the current case law as mere attempts at bootstrapping sexual orientation claims.
This Article challenges the common assumption that Title VII does not protect against discrimination on the basis of sexual orientation. The district and circuit courts have now consistently held that Title VII protects an individual who is discriminated against because of his or her relationship with someone of a different race or national origin—a form of discrimination that this Article refers to as “relational discrimination.” Properly understood, these relational discrimination cases have interpreted Title VII’s otherwise ambiguous language protecting against discrimination “because of such individual’s [protected characteristic]” as a robust phrase that takes into account human interactions and relationships, as opposed to a narrow understanding limited to an individual’s protected characteristic viewed in isolation. The underlying logic of these cases is that any time an employer discriminates against an individual because of his or her interracial relationship, that employer is necessarily considering the race of the individual employee, viewed relationally to the other person in the relationship, in making that determination.
