Married on Sunday, Fired on Monday?

On June 26, 2015, the Supreme Court delivered its landmark decision, Obergefell v Hodges, recognizing the constitutional right of men and women to marry, regardless of the spouse’s gender. But, does this decision protect these newlyweds from discrimination at work because of their sexual orientation? Or will they be married on Sunday only to be fired on Monday?

In the private sector, the vast majority of the courts have held that job discrimination based on the employee’s sexual orientation is not illegal. But, under a recent ruling from the Equal Employment Opportunity Commission (the EEOC), it is different for federal employees.

The EEOC holds that an allegation of sexual orientation discrimination “is necessarily an allegation of sex discrimination.” Since sex discrimination is already illegal, sexual orientation discrimination is similarly unlawful in the federal workplace. By way of example, the EEOC reasons that, if an employer suspends a lesbian employee for having a picture of her female spouse on her desk, but does not suspend a male employee for having a picture of his female spouse on his desk, the employer is discriminating against the lesbian employee because of her gender. She would not have been punished if she were a male. The employee’s sex is unlawfully being taken into account

The EEOC’s decision is narrow so far.  It only applies to employees of the federal government whose cases are heard by the Commission.  It is not binding on courts.  And the decision does not affect the rights of people who work for private companies. Still, employees in the private sector are arguing that they have the same rights when they take their cases to court. Whether and how this reasoning will be accepted in the courts remains to be seen. If it does not, Congress will no doubt be called upon to amend the law so that it explicitly prohibits discrimination because of sexual orientation.