Marriage Equality, Workplace Inequality: The Next Gay Rights Battle

Same-sex marriage is not the only civil rights issue impacting the gay community. Although the Supreme Court’s decision in Obergefell v. Hodges represented a momentous victory on same-sex marriage, workplace protections affect far more people and remain a high priority for many lesbians and gay men. Today, even though the Supreme Court has invalidated state marriage restrictions across the country, federal law still makes it perfectly permissible to fire a gay man for telling a coworker about his sexuality or to discharge a woman for displaying her wife’s picture at work. This Article critically evaluates the relationship between same-sex marriage and workplace rights. Focused narrowly on case-by-case tactics, proponents of same-sex marriage won in court by selectively choosing gay couples who appeared “safe” and “ordinary” to judges. The decision to prioritize marriage over other gay civil rights—while utilizing reductive depictions of gay relationships in the process—raises distinct challenges for lawyers attempting to extend victories on the marriage front to other important legal realms such as employment protections. Outlining a model for thinking about gay rights beyond marriage, this Article calls for renewed attention to the argument that sexual orientation discrimination constitutes a form of sex discrimination. The cultural imperative requiring individuals to desire only partners of the opposite sex constitutes American society’s most enduring gender stereotype. Employers and states that punish sexual minorities for violating this norm engage in both sexual orientation discrimination and sex discrimination. By combating discrimination in employment, housing, and other civil rights areas, this refocused approach to gay rights applies to numerous legal contexts outside of marriage, thereby addressing the legal needs of a much larger segment of the gay community. * Professor of Law, Willamette University. J.D., Stanford University. I thank Richard Birke, Caroline Davidson, and Paul Diller for helpful conversations and input on this Article. In addition, Kimberly Davis and Tyler Millette provided outstanding research assistance throughout this project. I greatly appreciate the excellent library research support that I received from Galin Brown, Tim Kelly, and Ann Kitchel. Finally, I thank William Cochran, Vitaliy Kats, Rebekah Runyon, Marla Spector Bowman, and the other editors of the Florida Law Review who worked diligently and deftly to adapt to a fast-changing area of the law. 1 Cunningham-Paremeter: Marriage Equality, Workplace Inequality: The Next Gay Rights Batt Published by UF Law Scholarship Repository, 2016 1100 FLORIDA LAW REVIEW [Vol. 67 INTRODUCTION 1100 I. THE MARRIAGE EQUALITY NARRATIVE 1107 A. The Ordinary Gay Couples of Obergefell and Windsor 1109 B. Narrative Costs: Concealing Sexuality, Deprioritizing Other Rights 1112 II. EMPLOYMENT INEQUALITY: THE SEXUALIZED NARRATIVE OF GAY HARASSMENT 1117 A. Predatory Gay Exception 1119 B. Effeminate Victim Exception 1125 C. Predators and Happy Couples: The Common Thread of Gay Erasure 1132 III. REFOCUSING ON SEX DISCRIMINATION: THE GENDER STEREOTYPES OF SEXUALITY 1133 A. Return of the Sex Discrimination Argument 1134 1. Obergefell, Marriage Inequality, and Sex Discrimination 1136 2. Employment Inequality as Sex Discrimination 1142 B. Gay Erasure Redux? Responding to the Moral Critique 1148 CONCLUSION 1155