Following the excitement of the same-sex marriage decision by the U.S. Supreme Court on June 26th, the question remains how much the Opinion may impact Title VII employment discrimination claims. Based on our reading of the Obergefell v. Hodges decision, and the many states that have passed legislation protecting employees from sexual-orientation discrimination, we recommend that employers revisit and update their anti-discrimination policies.
In Obergefell v. Hodges, 2015 WL 2473451 (U.S. June 26, 2015), the U.S. Supreme Court held that the Due Process and Equal Protection Clauses of Fourteenth Amendment require a state to license a marriage between two people of the same sex and to recognize a marriage between people of the same sex when their marriage was lawfully licensed and performed out-of-state. Although the Fourteenth Amendment does not apply to private employers and the decision did not specifically address discrimination based on sexual orientation and gender identity in employment, employees may attempt to use the Obergefell decision as support for claims of employment discrimination under Title VII of the Civil Rights Act of 1984.
Title VII does not explicitly prohibit employment discrimination based on sexual orientation. However, Title VII does prohibit discrimination based on sex and courts have recognized protections for LGBT plaintiffs under Title VII in the context of this prohibition. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the U.S. Supreme Court held that discrimination based on sex stereotyping and the failure to conform to gender stereotypes in appearance and conduct (i.e. dressing or acting too masculine or feminine) is forbidden under Title VII. Further, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the Court held that sexual harassment is not limited to harassment by members of the opposite sex, but includes same-sex harassment as well.
Lower courts have also recognized protection for LGBT plaintiffs where the discrimination in question is found to be based on sex. For example, in Hall v. BNSF Ry. Co., 2014 WL 4719007, at *5 (W.D. Wash. Sept. 22, 2014), the Court denied defendant’s motion to dismiss claims under Title VII made by a plaintiff in a same sex marriage who was denied coverage under his employer’s health plan on the basis that the plan defined marriage as between one man and one woman, and therefore provided coverage only for spouses of the opposite sex. The court held that the claim was cognizable because Plaintiff alleged “disparate treatment based on his sex, not his sexual orientation, specifically that he (as a male who married a male) was treated differently in comparison to his female coworkers who also married males.” Similarly, in Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002), the Court held that Title VII was applicable where a supervisor repeatedly harassed and ultimately discharged a lesbian plaintiff because the plaintiff did not conform to the supervisor’s stereotype of how a woman ought to behave—“[the plaintiff] is attracted to and dates other women, whereas [the supervisor] believes that women should be attracted to and date only men.” In so holding, the Heller court strongly stated: “Nothing in Title VII suggests that Congress intended to confine the benefits of that statute to heterosexual employees alone. Rather, Congress intended that all Americans should have an opportunity to participate in the economic life of the nation.” Id. at 1222. It should also be noted that the EEOC interprets Title VII as providing protection for LGBT people and has issued several decisions finding Title VII applicable under circumstances similar to those detailed in the cases discussed above.
Again, although the Opinion does not explicitly address employment discrimination or Title VII, LGBT plaintiffs may seek to use language in the Obergefell to support a broad interpretation of Title VII’s prohibitions in accord with the cases decided above. Specifically, LGBT plaintiffs may point to the language in the Court opinion that emphasizes equal treatment for all under the law, including LGBT people. See Obergefell, 2015 WL 2473451, at *16 (“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”);id. at *17 (“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”). Further, because under Obergefell, same-sex marriage is legal in all 50 states, cases such as Hall may become more commonplace with employees alleging that they are being discriminated against under Title VII because they are married to a member of the same sex.
No matter its effect on Title VII cases, the Obergefell decision and the country’s overall shift toward recognition of LGBT rights, will likely result in renewed support for the Employment Non-Discrimination Act (ENDA), which is federal legislation previously introduced in the Congress but not passed that explicitly prohibits employment discrimination on the basis of sexual orientation or gender identity.
In light of the Obergefell decision and its potential consequences, this is a good time for employers to revisit their anti-discrimination policies to ensure compliance with the law and ban discrimination based on sexual orientation even if not explicitly required by federal, local or state law.