Workplace and Hiring Discrimination
Many Americans may assume the Supreme Court’s decision in Obergefell will have a direct bearing on cases of discrimination on the basis of sexual orientation. That’s not quite right, said Andrew Koppelman, a law professor at Northwestern University. “The question of how you treat discrimination against gay people is just a different question [than] whether you allow them to marry,” he said. “Allowing them to marry is a question of what the state does. The other question is a question of how you regulate private actors and for what reason.”
A 2014 survey found that roughly 75 percent of Americans believed that federal law prohibits firing or refusing to hire someone on the basis of sexual orientation. Roughly 75 percent of Americans were wrong. Despite repeated attempts to pass the Employment Non-Discrimination Act and similar pieces of legislation in Congress, no federal protection has ever been put in place. As my colleague Joe Pinsker wrote in The Atlantic on Wednesday, the recent EEOC decision is an important first step toward creating these protections at the federal level, but lower courts could dispute the Commission’s interpretation of Title VII. The final interpretation of this statute would have to come from the Supreme Court, particularly if lower courts challenge the Commission’s decision.
Twenty-two states and the District of Columbia have laws covering sexual-orientation discrimination in areas like housing and employment, which means 28 states don’t have them. Last March, Utah passed a law prohibiting sexual-orientation-based discrimination, but with an important caveat: All religious organizations, including colleges, charities, and some miscellaneous organizations like the Boy Scouts are exempt.
Which leaves an open question: What about private employers who claim to have a religious objection to having gay employees? Douglas Laycock, a law professor at the University of Virginia, was skeptical that these kinds of claims could make it very far in court—or that they’d even come up that often. “When you say, I can’t have any gay person working in my [business], and it’s against my religion, judges are going to be skeptical that that’s a religious belief,” he said. “Non-discrimination laws serve a compelling interest.”
For now, the bigger issue is the ambiguity. In the absence of explicit federal protections—and in many places, state protections—someone who believed he or she was being discriminated against on the basis of sexual orientation would be totally dependent on the interpretation of the courts.
Where things get trickier, though, is with spousal benefits. To help explain why, a bit of background: Often, when people sue for religious exemptions to certain laws, they do it under the auspices of the Religious Freedom Restoration Act, or RFRA. This June, before the same-sex-marriage ruling, the ACLU ran an op-ed in The Washington Post declaring that it could no longer support the federal version of RFRA. The reason it cited was the Supreme Court’s decision in Hobby Lobby, in which the Court ruled that most private businesses could legitimately claim a religious objection to covering certain kinds of birth control in their employees’ health-insurance plans, something that’s now required by the Affordable Care act. “The RFRA wasn’t meant to force employees to pay a price for their employer’s faith,” the op-ed’s author, Louise Melling, wrote. “Efforts of this nature will likely only increase should the Supreme Court rule—as is expected—that same-sex couples have the freedom to marry.”