Same-Sex Marriage and Title VII

46 Pages Posted: 18 Oct 2015

Date Written: October 15, 2015

Abstract

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

Suggested Citation

Befort, Stephen F. and Vargas, Michael, Same-Sex Marriage and Title VII (October 15, 2015). Santa Clara Law Review, Vol. 56, 2015; Minnesota Legal Studies Research Paper No. 15-32. Available at SSRN: https://ssrn.com/abstract=2674701

Stephen F. Befort (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
(612) 625-7342 (Phone)
(612) 625-2011 (Fax)

Michael Vargas

Rimon Law ( email )

United States

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