The Obergefell Effect On Employment

On June 26, 2015, the Supreme Court of the United States (“SCOTUS”) decided the 5-4 landmark decision, Obergefell v. Hodges, No. 14-556 (June 26, 2015). What’s so important about this case, which has resulted in nationwide parades, rainbow lighting of the White House, and rainbow-tinted profile pictures on Facebook? And, more important to us here at BerlikLaw, what might the Obergefell ruling portend for the employment discrimination realm?

Well, I’ll tell you. Obergefell determined that the states could not ban same-sex marriage. Prior to June 26, 2015, thirty-six states permitted same-sex marriage, but the remaining states still prohibited it. Then, last Friday, in a sweeping act of federalism, SCOTUS determined that the states could not constitutionally prevent same-sex couples from legally marrying in any state. SCOTUS answered a “YES” to the pivotal constitutional question: do the Equal Protection and Due Process clauses of the Fourteenth Amendment require all states to perform same-sex marriages? Yes, yes, they do.

Back in October 2014, I blogged about how a recent SCOTUS ruling might implicate Title VII of the Civil Rights Act of 1964. As I said there, Title VII affords some protection to employees who are discriminated against in their employment on the basis of their sexual orientation or gender identity, but this is subsumed under the general umbrella of “gender discrimination.” The proposed Employment Non-Discrimination Act, commonly known as ENDA, would go a step further than Title VII. ENDA creates a separate class on the basis of which employees cannot lawfully be adversely treated: sexual orientation and gender identity. ENDA has sat, in some form or another, in Congress for more than ten years, with its most recent iteration, S. 815, passed by the Senate in 2013. President Obama himself has supported the passage of ENDA, but the House of Representatives continues to refuse.

In its current form, ENDA would protect gay and transgender employees from employment discrimination–including hiring, firing, promotion, and any employment practice– on the basis of the employee’s sexual orientation or gender identity. The bill states that it shall be an unlawful employment practice

to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment because of such individual’s actual or perceived sexual orientation or gender identity.

Like Title VII, ENDA also contains an anti-retaliation provision at Section 5 of the Act, which is similar to the language enforced by the Equal Employment Opportunity Commission.

Given the constitutional grounds SCOTUS relied on, renewed interest in promoting ENDA, or amending Title VII’s existing protections to include sexual orientation and gender identity, may be on the horizon. If the U.S. Constitution protects people from state interference with same-sex marriage, perhaps the time has come for legal challenges to the current state of the law to more explicitly protect folks from subtle yet insidious employment discrimination based on an employee’s sexual orientation or gender identity, traits like age or race, that should have no bearing on an individual’s ability to perform a job. The Equal Protection Clauses of the U.S. and Virginia Constitutions are supposed to render us all equal, and the gay, lesbian, bisexual, and transgender community deserve the full force of the same legal federal protections.

By Amy Epstein Gluck, Contributor