Same-Sex Marriage and Title VII
46 Pages Posted: 18 Oct 2015
Date Written: October 15, 2015
Although the Supreme Court’s decision in Obergefell v. Hodges has now made same-sex marriage lawful throughout the United States, a large and fervent minority of American society continues to view such unions with antipathy. As a result, cases are now arising in which employees are alleging adverse treatment due to the fact of having entered into a same-sex marriage. While some courts will view discrimination in reaction to same-sex marriage as an unprotected variant of sexual orientation discrimination, this article contends that such conduct properly should be treated as unlawful sex discrimination based on two different, but complementary, theories. First, discrimination in response to same-sex marriage involves sex-based stereotyping grounded in the fact that marrying someone of the same sex constitutes gender-nonconforming behavior. Second, such conduct involves actionable “relational” discrimination akin to a situation in which an employer takes adverse action against a white employee because of the fact that the employee has an African-American spouse. In sum, this article provides a roadmap demonstrating how Title VII should be construed to protect individuals who have entered into same-sex marriages from workplace discrimination.
Keywords: Discrimination, Same-sex marriage, Title VII, gender stereotyping
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