Those of us in the LGBTQ community will never forget June 26, 2015, the day that the Supreme Court issued its decision in Obergefell v. Hodges, holding that the fundamental right to marry is guaranteed to same-sex couples by the Fourteenth Amendment of the United States Constitution. Obergefell represented acceptance of the notion that we and our relationships deserve, as Justice Kennedy stated, "equal dignity in the eyes of the law."
This decision was an instant sensation in the news and social media: Title VII of the Civil Rights Act of 1964 held to protect employees from discrimination because of sexual orientation (and, presumably, gender identity as well). Digging into the majority and separate opinions, we can trace different possible outcomes when this question inevitably reaches the U.S. Supreme Court.
Major shifts in gender equality jurisprudence in recent years have led to expanded rights and benefits for LGBTQ employees. The Section devoted two panels at the Section Conference to the rapidly developing areas of anti-discrimination law, employee benefits, and sexual orientation and gender identity in the workplace. The scope of civil rights protections for LGBTQ employees under Title VII generated the most discussion in the wake of the Supreme Court's decision in Obergefell v. Hodges (2015) and the EEOC's decision in Baldwin v. Foxx (EEOC 2015). In Obergefell, the Court held that the 14th Amendment guarantees all couples, straight or gay, the fundamental right to marry under a due process analysis, although Justice Kennedy noted that the ruling derived in part from the Equal Protection clause.
Last Thursday, the EEOC issued a groundbreaking decision that held, in clear and unequivocal language, that claims of discrimination based on sexual orientation implicitly state a claim of sex discrimination under Title VII. See Complainant v. Foxx, EEOC DOC 0120133080, 2015 WL 4397641, at *10 (July 16, 2015). This decision comes on the heels of the Supreme Court's landmark decision granting same-sex couples the right to marry under the Fourteenth Amendment. Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015).