Kramer on Heterosexuality and Title VII

Zak Kramer (Arkansas-Little Rock) has posted on SSRN his forthcoming piece in the Northwestern University Law Review: Heterosexuality and Title VII.

Here's the abstract:

There is a double standard at work in employment discrimination cases. While courts frequently reject otherwise actionable sex discrimination claims brought by lesbians and gay employees on the grounds that sexual orientation is not protected under Title VII, no court has ever ruled this way in a case brought by a heterosexual employee. What explains this double standard? The conventional wisdom is that heterosexual employees do not face discrimination on the basis of their sexual orientation. In this Article, I offer a different explanation, one that is rooted in the cultural invisibility of heterosexuality in our society. Because we tend not to think of heterosexuals as having a sexual orientation, courts are unable to see when an employee's sex discrimination claim implicates her heterosexuality. As a result, heterosexual employees are simply not at risk of losing their sex discrimination claims because of their sexual orientation. Thus heterosexuality and homosexuality are not similarly situated under Title VII. Whereas lesbian and gay employees are burdened by their sexual orientation in employment discrimination law, heterosexual employees are, in effect, privileged by theirs.

I had the privilege of hearing Zak give versions of this paper twice: once at a faculty workshop at my law school and once at the Second Annual Colloquium in Colorado. It is a thought-provoking piece and I recommend it highly.

PS