An unusual aspect to this review article of federal Title VII as well as state cases is the inclusion as Part III a discussion of the Solomon Amendment that withholds federal funding from schools that deny access to military recruiters (see Rumsfeld v. FAIR, 547 U.S. 47 (2006)). Given the exceptional status of the military, the decision to include this material here among "ordinary" employers can be questioned. Nevertheless, like the other articles in this special issue, the material is succinct, offering a good broad sweep of the field especially helpful to nonspecialists.

This article examines the Supreme Court’s Oncale (1988) case and how lower courts have interpreted it in applying Title VII sex discrimination law to same-sex sexual harassment. It urges development of more evidentiary routes for proving discrimination “because of sex” in such cases, beyond the three explicitly enunciated in Oncale.

The rationale of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) that protects against sex stereotyping discrimination can protect a transsexual "experiencing discrimination based on the failure to conform to the employer's expectations of how stereotypical men and women act," it does not necessarily offer a useful precedent for a transsexual who in fact conforms to such stereotypes, but nonetheless suffers discrimination because gender identity does not match biological sex. The author reads Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006) as filling this gap. (Later opinions in this case continued to favor the employee; see 525 F.Supp.2d 58 (D.D.C. 2007); 577 F.Supp.2d 293 (D.D.C. 2008)). This outcome promises to bring transsexuals fully within the protections of Title VII's "because of ... sex" rule, an achievement currently denied to other sexual minorities like gay men and lesbians because, as Eno notes, "Transsexualism is about being a man or a woman, not about being attracted to a man or a woman."

While courts--including the U.S. Supreme Court--have construed Title VII's "because of sex" language to include protections not explicit in the language of the statute, they have not exercised this same generosity to cover discrimination abased on sexual orientation. This reticence, seen by comparing the cases of Rene v. MGM Grand, 305 F.3d 1061 (9th Cir. 2002), and Nichols v. Azteca Restaurant Enterprises, 256 F.3d 864 (9th Cir. 2001), results in the line between gender stereotyping, which is prohibited, and sexual orientation discrimination, which is not, becoming "so thin that the distinction is confusing, unworkable, and must be wholly abandoned." These authors assert that the time has come to change this shortfall especially in the context of education.

If Title VII were amended to prohibit sexual orientation discrimination, this action would "prevent employers from developing unrestricted affirmative action programs for LGBT employees and unduly discriminate against straight employees" -- although the author offers little evidence that such programs are a serious likelihood. Nevertheless, such an outcome should make the change to the law attractive to conservatives.

Arguing for a political (or social) solution to the issue of same-sex sexual harassment in the workplace, this author contends that courts are ill-equipped to understand the sexuality inherent in sexual harassment. Rather, the courts have gone out of their way to avoid arguments of sexuality, relying instead on a “false binarism.” The author argues that “the courts’ inability to adequately theorize sexuality precludes an equitable approach to adjudication of sexual harassment claims.” The article begins with a review of sexual harassment law and traces its progression over the past quarter-century.