In 2015, the Supreme Court of the United States (SCOTUS) found bans on same-sex marriage at the state level unconstitutional. Our country’s highest court stated that the Fourteenth Amendment requires states both allow and recognize same-sex marriages. These same justices that two years earlier struck down the federal Defense of Marriage Act held that states must recognize same-sex marriages. But what does this mean in the real world? What does this mean for couples that can now openly marry the ones they love? Although their marriages are recognized, will they be protected from retaliation by employers?
It may seem like the holding in Obergefell v. Hodges would come along with protections. Unfortunately, such an interpretation is not automatic.
The courts are currently disputing over whether or not Title VII, also referred to as the Civil Rights Act, offers protections to workers against discrimination based on sexual orientation. As noted in a recent piece by the Society for Human Resource Management, Title VII clearly prohibits the discrimination of employees based on sexual stereotyping. Some courts, such as the 11th Circuit, have held that this law does not result in such protections. Others, like the 7th Circuit, disagree. The 7th Circuit opinion points out that a case of sexual orientation discrimination is “the ultimate case of failure to conform” with a male or female stereotype as that person is not heterosexual.
What happens next? The holdings on these cases will likely be appealed, and experts in the legal field predict that the issue will end up at SCOTUS. The make-up of the justices on this court has recently changed. Although the most recent conservative justice took the seat of a previous conservative, it is difficult to tell how this new member could impact holdings by the court.
If SCOTUS finds the law offers protections, workers who find themselves the victims of workplace discrimination based on the sexual orientation will have the support of this specific piece of federal law to defend their rights. It is important to note that regardless of this holding, additional protections are available to those who are facing this form of discrimination. State level protections, such as the California Fair Employment and Housing Act, also offer protection.
Because of the many layers that are present with these cases, it is wise for those who are facing discrimination in the workplace to seek legal counsel. An experienced attorney can explore all forms of protection, better ensuring a successful case to protect your rights.