Supreme Court’s Same-Sex Marriage Decision

Supreme Court’s Same-Sex Marriage Decision May Prove Problematic For Anti-Discrimination Efforts

By: Olga M. Serafimova, Esq., Royal LLP, Northampton, MA [Submitted on behalf of the Labor & Employment PAC]

In 1982, Wisconsin became the first state to prohibit employment discrimination based on sexual orientation both in the public and private sphere. Massachusetts was the next state to do so in 1989 and subsequently took the lead in the nation on the issue of same-sex marriage by legalizing it in 2004. After the Supreme Court’s recent decision in Obergefell v. Hodges, same-sex marriage is now legal throughout the nation. At the same time, less than half of the states recognize sexual orientation as a protected category under their anti-discrimination statutes with regard to both public and private employers. This disparity has raised the question of what impact, if any, will Obergefell have in these states through the federal employment discrimination laws.

The answer to this question may not be what most practitioners expect. Commentators have posited that Obergefell will either have no effect on employment discrimination laws or will expand protections for gay and lesbian employees. However, the Supreme Court’s decision may actually impede such efforts on the federal level. At a minimum, the Court’s vague discussion of the bases for its holding is bound to lead to further litigation.

Obergefell held that, because marriage is a fundamental right, the liberty prong of the Due Process Clause of the Fourteenth Amendment requires all states to recognize same-sex marriages. While it also held that the same result was mandated by the Equal Protection Clause, the original source of federal anti-discrimination legislation, the Court’s discussion of this point was brief and vague and did not address the level of scrutiny applicable to the issue.

More importantly, the Court completely ignored the petitioners’ argument that bans on same-sex marriage constitute discrimination based on sex under the Equal Protection Clause. Had the Court decided the case on this ground, Obergefell would have had vast consequences for states that do not currently prohibit employment discrimination based on sexual orientation. That is because sex is a protected category under Title VII of the Civil Rights Act of 1964, the federal statute governing discrimination in employment, whereas sexual orientation is not. As of June 26, 2015, the day Obergefell was decided, the only way to bring a discrimination claim based on sexual orientation under Title VII was for the employee to allege that his or her employer’s discriminatory conduct was motivated by gender stereotypes. Complaints failing to meet this pleading standard were subject to dismissal. Had the Supreme Court held that discrimination based on sexual orientation is a subset of sex discrimination, however, these additional factual allegations would have become unnecessary, allowing for more lawsuits to be filed both at the administrative and court level.

Less than a month after Obergefell, the Equal Employment Opportunity Commission (EEOC) did exactly that. On July 15, 2015, the EEOC held for the first time in [Redacted] v. Foxx that discrimination based on sexual orientation, without more, constitutes sex discrimination under Title VII. As the administrative agency charged with the enforcement of Title VII, the EEOC’s interpretation of that statute is entitled to judicial deference. Therefore, if deemed reasonable, Foxx could change the definition of sex discrimination under Title VII nationwide.

That may not happen, however, at least not without substantial further litigation. While the EEOC cites Obergefell as providing indirect support for its holding in Foxx, the argument could be made that the latter conflicts with the former. In Obergefell, the Court relied on its decision in Romer v. Evans, which applied rational basis review to classifications based on sexual orientation under the Equal Protection Clause. While Romer did not explicitly hold that homosexuality is not a quasi-suspect class for purposes of equal protection, it also did not preclude that interpretation. Subsequently, in her concurring opinion in Lawrence v. Texas, where the Court struck down laws criminalizing homosexuality as unconstitutional, Justice O’Connor interpreted Romer exactly that way.

On the other hand, gender is a quasi-suspect class, and thus discrimination based on sex is subject to intermediate scrutiny under the Equal Protection Clause. As such, discrimination based on sexual orientation cannot be its subset unless homosexuality is likewise a quasi-suspect class. By failing to refute Justice O’Conner’s interpretation of Romer in Lawrence, the Court in Obergefell arguably did more than merely ignore the petitioners’ sex discrimination argument — it may have rejected it by implication. If so, the Supreme Court actually created an impediment to efforts to prohibit discrimination based on sexual orientation under federal law. Because the Equal Protection Clause and Title VII are so closely intertwined, the Court’s interpretation of sex for purposes of discrimination would trump that of the EEOC. At the very least, Obergefell’s failure to answer this question unequivocally will lead to substantial further litigation.

These issues will become irrelevant, however, if Congress passes the Equality Act of 2015, a bill introduced on July 23 that seeks to amend federal civil rights laws, including Title VII, to explicitly prohibit discrimination based on sexual orientation. The bill has attracted wide support from major private employers, including Amazon, Apple, American Airlines, the Dow Chemical Company, General Motors, Google, Hewlett-Packard, and others. Of course, if passed the Equality Act will likely lead to its own flood of litigation. NAMWOLF’s Labor and Employment PAC will keep a close watch on these exciting developments.

Olga Serafimova is an attorney at Royal LLP, a woman-owned, boutique management-side labor and employment law firm. Olga advises employers on a wide range of employment law matters.