Has the Recent Same-Sex Marriage “Decision” Paved the Way for Increased Protection Against Sexual-Orientation Discrimination in Employment?

A few days ago, SCOTUS (the Supreme Court of the United Sates) surprised us some by deciding not to hear appeals from several states that sought to prohibit same-sex marriage. However, the non-ruling has been hailed as a historical and momentous event changing an untold number of lives. What happened? Well, the Supreme Court “denied cert“–that is, it declined to review appellate decisions–from cases in Virginia, Utah, Indiana, and some other states, which had held that bans on same-sex marriage were unconstitutional. By refusing to hear the appeals, the court gave tacit approval of the lower courts’ decisions, making gay marriage legal in 11 more states. Legal gay marriage across the country is happening, people, as it’s now legal (or about to become legal) in 35 states, including the District of Columbia.

On October 7, hot on the heels SCOTUS’s denial of cert of 4th Circuit decisions allowing same-sex marriage in Virginia, the Virginia Commonwealth University in Richmond announced that it intended to broaden its discrimination policies to include gender identity and sexual orientation. These developments are interesting as they may be portentous as Virginia state law does not yet include gender identity and sexual orientation as protected classes, which enables employers to fire an employee for being gay.

There are implications to SCOTUS’s actions under Title VII of the Civil Rights Act of 1964, the federal law that prohibits discrimination in employment on the basis of age, disability, national origin, religion, race, and gender. Gender discrimination occurs when either an employee or a job applicant is treated differently (in a negative way) based on that person’s gender. Sexual harassment is considered a form of gender discrimination, if the harassment is based on the person’s gender and is considered severe and pervasive enough to rise to the requisite level. Further, the federal agency that enforces Title VII, the Equal Employment Opportunity Commission, considers adverse actions taken because an employee’s or applicant’s failure to rainbow.jpgconform with gender stereotypes to be a form of gender discrimination, yet no federal law specifically says so.

Considering how SCOTUS’s denial of cert may affect federal discrimination laws, first, we just may see a rise in sexual orientation and gender identity claims for gender discrimination filed with the EEOC. Second, it is equally likely that sexual orientation is going to follow the precedent set by pregnancy discrimination, which is now considered a form of gender discrimination since only one gender can become pregnant. Eventually, in 1978 Congress passed the Pregnancy Discrimination Act as an amendment to Title VII to prohibit discrimination on the basis of pregnancy. An amendment to Title VII of the Civil Rights Act of 1964 that bans sexual orientation discrimination may be next. There are reasons why such a bill has not already passed, but that subject exceeds the scope of this blog post.

Currently, twenty-nine states still do not have laws prohibiting discrimination on the basis of sexual orientation, including Virginia. With same-sex marriage prohibitions and discrimination ending, employment discrimination based on sexual orientation may not be far behind. Why? At present, a same-sex couple can get married in Virginia, but anomalously, an employee can be legally fired in Virginia due to his or her sexual orientation or even related to sexual orientation, such as being a bridesmaid in a same-sex wedding. Virginia employers may want to consider the recent SCOTUS decision not to decide when considering or drafting new equal employment policies or revising their employee handbooks.

by Amy Epstein Gluck – Contributor

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