Title VII Discrimination Protections & LGBT Employees : The Need for Consistency, Certainty & Equality Post-Obergefell

This article addresses the post-Obergefell landscape where employment protections from discriminatory practices for LGBT Americans are fraught with uncertainties and inconsistencies. Recent historical LGBT civil rights advances have led to new legal dilemmas, including confusion and unpredictability in the area of employment law. With an estimated 6.5 million LGBT employees in the United States workforce, employment discrimination and the state of available workplace protections for LGBT employees present a significant and serious concern. Three years after the Supreme Court announced a constitutional right to marry for same-sex couples, laws remain that permit an employer to fire a gay or lesbian employee for exercising that very right, and there remains no federal law in place prohibiting employment discrimination on the basis of gender identity or sexual orientation. Further, while Supreme Court jurisprudence providing an expansive view of “sex” under Title VII has led to protections for employees discriminated against on the basis of gender identity, the federal appellate courts are split, along with federal agencies, regarding whether LGBT employees are entitled to protections from discrimination in the workplace based on sexual orientation. The lack of coherent, uniformly recognized laws prevents consistent legal outcomes and applications for employers and employees alike, leading to confusion and undermining advancements in LGBT rights. This article contends that legal protections in the workforce against discriminatory employment practices have not kept pace with advances in constitutional rights now available for LGBT employees. It addresses nondiscrimination protections in Title VII and asserts that firing, harassing, failing to promote, or otherwise discriminating against an employee based on his or her LGBT status is a form of sex stereotyping that illegally discriminates against the employee based on his or her gender identity or sexual orientation. Noting that the EEOC has extended Title VII prohibitions on sex discrimination to prohibit discrimination on the basis of both gender identity and sexual orientation and that numerous federal courts have been persuaded by the argument, the article explores the growing trend in the federal appellate courts to recognize that both gender identity and sexual orientation discrimination are encompassed by Title VII’s prohibition on sex discrimination. The article notes that while many LGBT advocates feel it is critical for Congress to amend Title VII to include LGBT status to the list of protected classes, the Supreme Court’s recent certiorari grant in the Bostock case means the issue should be resolved by the Court during the 2019–2020 Supreme Court Term. Finally, the article addresses LGBT advocate concerns regarding whether current changes in the Court’s makeup may shift the prior Court’s narrow forward-leaning majority in favor of LGBT rights into reverse, putting current Title VII rulings providing protection from discrimination to LGBT employees at risk