Sexual harassment jurisprudence is predicated on heteronormative constructions of desire and power in the workplace. Harassment claims brought by gay and lesbian workers explode this binary gender paradigm by challenging the premise that desire can only flow between workers of different biological sexes. While courts have striven to integrate LGBT workers into existing anti-harassment legal regimes, the contortions made to achieve such integration expose the under-inclusiveness of sexual harassment doctrine in its current form. Workplace harassment on the basis of gender non-conformity, whether manifested as discrimination against gay workers, or against employees who refuse to adhere to norms of gender identity and performance, is largely unprotected under Title VII. Legislators have recognized that Title VII leaves these groups unprotected and have proposed new legislation, the Employment Non-Discrimination Act (ENDA), as a means to protect these groups. Legislators––and academics––have argued that ENDA will adequately address discrimination experienced by LGBT workers.
This paper provides a critique of the proposed Employment Non-Discrimination Act as a catch-all solution to curbing workplace discrimination against gender outlaws. It compares the similar analytical deficiencies of Title VII and ENDA, arguing that both laws strive to protect discrete classes of workers, rather than to dismantle discriminatory strategies employers deploy to maintain gender rigidity, and ultimately gender hierarchy, in the workplace. By excising sexual orientation from Title VII’s prohibition on gender discrimination, ENDA proponents risk eliding the important point that LGBT identity is a manifestation of gender non-conformity. This paper argues that the enactment of ENDA is not enough; Title VII must expand and evolve to cover discrimination waged against all forms of gender non-conformity. A two-pronged Title VII and ENDA approach would preserve the critical connections between discrimination, discipline, and violence targeted towards workers who fail to adhere to the gender norms of the workplace.