The Gay Marriage Decision: Support For Title VII Employment Discrimination Claims?

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...