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Sexual Orientation Discrimination Under Title VII After Baldwin v. Foxx


Ryan H. Nelson


November 16, 2015

The Equal Employment Opportunity Commission in Baldwin v. Foxx opined—for the first time—that employment discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964. This Article tackles the two administrative law questions that Baldwin poses: what level of deference should a court afford Baldwin, and should such deference force that court to overturn precedent holding that sexual orientation discrimination lies beyond the purview of Title VII?

First, after the Supreme Court’s opinion in Barnhart, lower courts have split on whether Chevron Step Zero should be governed by the rule-of-law test announced in Christensen and Mead, or whether Barnhart’s five-factor test provides a new standard for this inquiry. This Article explains why the Christensen/Mead rule-of-law test should govern Chevron Step Zero; why that test dictates that courts should analyze Baldwin under the deference test announced in Skidmore, not Chevron; and why Baldwin consequently deserves de minimis deference.

Second, the Supreme Court’s opinion in Brand X held that judicial interpretations of ambiguous statutes must be overturned in the face of subsequent, contrary agency interpretations that would have earned Chevron deference but for stare decisis. Yet, no exception to stare decisis exists when an agency interpretation of an ambiguous statute earns mere Skidmore deference. This Article examines such a potential exception, concluding that stare decisis should trump agency interpretations of ambiguous statutes, Skidmore deference notwithstanding.

This Article concludes that Baldwin is far from a watershed moment for LGBT workplace equality. Rather, the courts—which have almost uniformly held that employment discrimination based on sexual orientation does not violate Title VII—should uphold such decisions despite Baldwin and the meager Skidmore deference it earns. Indeed, congressional action remains the only way to ban employment discrimination based on sexual orientation on a national scale.