“Love is love is love is love,” said the joyous and incredibly talented Lin-Manuel Miranda at the Tony Awards last night as he accepted his award for best score for “Hamilton.”
As the one-year anniversary in Obergefell v. Hodges approaches amidst the Gay Pride festivals and parades throughout the country this past weekend juxtaposed with the horrific events that transpired in Orlando, I think of a similar refrain I use when counseling corporate clients— equality is equality is equality is equality.
Ok, that’s not exactly what I say, but you get the gist.
When making an employment decision, the general rule of thumb is to treat employees equally without regard to race, gender, religion, age, or any other protected class. While gender discrimination occurs when either an employee or a job applicant is treated differently based on that person’s gender, discrimination explicitly based on an employee’s sexual orientation or gender identity remains excluded from the category of classes protected by Title VII’s anti-discrimination missive.
The Obergefell decision legalized same-sex marriage, but the Equality Act, an amendment to Title VII of the Civil Rights Act of 1964 that would legally prohibit discrimination on the specific bases of sexual orientation and gender identity in public and private workplaces, sits patiently in Congress waiting to be passed.
What’s the real-life effect of this?
A same-sex couple can legally marry, but, incongruously, the law does not prohibit, unequivocally, employers from terminating an employee due to his or her sexual orientation or even related to sexual orientation.
Right now, to prove a claim of discrimination based on sexual orientation, an employee has to prove gender discrimination—that the employee is being treated differently based only on gender. While courts have been slow to recognize that discrimination based on an individual’s sexual orientation or gender identity is gender discrimination, which violates Title VII, the EEOC argues that employment discrimination based on an individual’s sexual orientation is, OF COURSE (ok, the shouty caps are mine) a form of sex discrimination unlawful under Title VII.
The tide seems to be turning.
For example, when an orthopedic surgeon filed a sex discrimination claim alleging that she was not hired because she disclosed her identity as a transgender woman who would begin work after transitioning to presenting as female, the District Court held that the Price Waterhouse case (deeming sexual stereotyping to be a form of sex discrimination) contradicts the narrow view of Title VII’s plain language that previously excluded sex discrimination claims by transgender folks. (This case, Fabian v. Hospital of Central Connecticut, No. 3:12-cv-1154, 2016 WL 1089178 (D. Conn. Mar. 18, 2016), cites to similar holdings in the 6th, 9th, and 11th Circuits, as well as various EEOC rulings).
Similarly, another court observed, “In light of the EEOC’s recent [Baldwin] decision on Title VII’s scope, and the demonstrated impracticality of considering sexual orientation discrimination as categorically different from sexual stereotyping, one might reasonably ask – and, lest there be any doubt, this Court is asking – whether that line should be erased.” (Christiansen v. Omnicom,Group, Inc., __ F. Supp. 3d ___, 2016 WL 951581 (S.D.N.Y. Mar. 9, 2016)).
What should employers do?
C’mon, you know: treat people equally without regard to their sexual orientation or gender identity. Or else risk a costly sex discrimination suit until some version of ENDA is passed.