“You can get married, put a picture on your desk from the wedding and then be fired because the boss sees the picture,” he said.
“Marriage was certainly an important step, but it doesn’t change the fact that there is no federal law protecting against sexual-orientation discrimination in employment or housing or education or public accommodations,” Professor Cohen said. “Only about 20 states offer protection under their own state laws.”
This month, the gay rights group Lambda Legal announced that it would ask the Supreme Court to hear a case that could prohibit employers from discriminating against gay and lesbian workers. The group argues that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on sex, also bans discrimination based on sexual orientation.
Most federal appeals courts have rejected the theory. But in April, by an 8-to-3 vote, the United States Court of Appeals for the Seventh Circuit, in Chicago, said Title VII covered gay people. “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation,’” Chief Judge Diane Wood wrote for the majority.
She relied on the language and logic of Title VII, and on Supreme Court precedents.
In 1989, for instance, the Supreme Court said discrimination against workers because they did not conform to gender stereotypes was a form of sex discrimination. Being a lesbian, Judge Wood wrote, “represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional).”
In dissent, Judge Diane S. Sykes said the majority had overreached. “It’s understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act,” she wrote. “Legislative change is arduous and can be slow to come. But we’re not authorized…