The recent historic Supreme Court ruling in Obergefell v. Hoges, legalizing same-sex marriage throughout the nation, left some employers and employees questioning how this will apply to the workplace. More specifically, if Obergefell will have any impact on federal law and Title VII employment discrimination protections.
Title VII of the Civil Rights Act of 1964 is a federal law that protects employees and applicants from employer discrimination based on their “protected status,” e.g. race, color, national origin, gender, and religion. Note that the employer must have 15 or more employees and Title VII also prohibits discrimination against an individual because of his or her association with another individual of a particular race, color, religion, sex, or national origin (e.g. interracial marriage). However, there are no federal protections afforded for sexual orientation or gender identity under Title VII or federal law … yet.
Currently, twenty one (21) states, as well as the District of Columbia, have passed laws prohibiting employment discrimination, with approximately 48% of the LGBT community living in these states. In our progressive state of New York for example, we have The Sexual Orientation Non-Discrimination Act (“SONDA”). SONDA, passed in 2003, adds the term “sexual orientation” as a protected status in State laws such as the Human Rights Law, the Education Law, and the Civil Rights Law.
Groups such as the Human Rights Campaign and other LGBT advocates have been pushing for federal laws that protect lesbian, gay, bisexual or transgender individuals from employment discrimination for several years. For example, Congress has consistently failed to pass the Employment Non-Discrimination Act (“EDNA”) protecting such individuals. On the other hand, a federal law signed by President Obama in July of 2014 and effective since April 8th, 2015, offers discrimination protections for sexual orientation and gender identity in the federal contracting industry.
Now these groups and advocates can push even further, with Obergefell providing a legal foundation to stand on. Obergefell does not mention extending protections for sexual orientation or those in same-sex marriages to the workplace, but it did provide a glimpse of what’s possibly next to come, a new political landscape. The reasoning goes, if same sex marriages now have to be recognized in every state and marriage licenses must be issued to these couples, how is it these individuals can still be fired due to their sexual orientation in many states? At a crossroads with this are the lower courts and state legislatures that now must take a stance and interpret the implications of Obergefell in the employment arena. In light of the giant steps taken towards marriage equality and the small steps towards protections of gender identity and sexual orientation in employment, I think the future of employment law and Title VII will change dramatically in the upcoming years, and Obergefell might be the reason.*
* Please note that since the writing of this article, legislation called the Equality Act has been proposed to possibly expand federal protections for LBGT Americans. As of November 10, 2015, President Obama has announced his support of the Equality Act (especially with pressure from many big companies such as Apple, Nike, Facebook and Google). Also in support of the Equality Act is Presidential Nominee Hillary client. The federal protections under the Equality Act would include employment and other major areas where LGBT are not covered, such as housing and public education. The Equality Act also aims to amend the Civil Rights Act of 1964 to include sexual orientation and gender identity as protected classes.
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