Title VII does not prohibit discrimination based on sexual orientation. In places without state laws prohibiting such discrimination, gay employees have attempted to sue under Title VII, claiming that the employer imposed impermissible gender stereotypes on gay employees, resulting in actionable sex discrimination. In a recent case from Tennessee, the Sixth Circuit Court of Appeals rejected this attempt to use Title VII to bootstrap what it concluded was a claim of sexual orientation discrimination.

In Gilbert v. Country Music Assoc. Inc., the plaintiff was an openly gay male employee who alleged that a co-worker called him "faggot" and threatened to stab him. He sued his employer and union, claiming that they had failed to shield him from this conduct, and later retaliated against him. Among other causes of action, he alleged that under Title VII, his employer discriminated against him based on his sex because he was required to conform to a certain gender stereotype.

The Sixth Circuit disagreed, affirming dismissal of the Title VII claim on summary judgment. The court concluded that the plaintiff never alleged discrimination based on gender non-conforming behavior. Although openly gay, he never claimed that his behavior and mannerisms do not conform to a gender stereotype. His co-worker's hostility toward gay persons, and the employer's alleged failure to react was not the result of gender-based behaviors.

Most plaintiffs trying to use Title VII to address claims of sexual orientation discrimination have faced similar results. While true sex stereotyping is actionable under Title VII, the plaintiff must demonstrate that the employer's actions were based on these mannerisms and characteristics, and not the plaintiff's underlying sexual orientation.