The ruling in Obergefell provided gays and lesbians with a constitutional right to marriage, but it also made them susceptible to workplace discrimination. Marriage licenses, which are public record, allows employers [and citizens] access to marriage documents. If an employer learns that an individual is gay or lesbian they can potentially fire you. Since 1974 Congress has attempted to pass the Employment Non-Discrimination Act (ENDA) with no success. If we are to protect same-sex marriage with the same rights that heterosexuals are entitled to then we must as a country pass ENDA. President Obama has provided a path by issuing executive orders to protect LGBT employment in the federal government and among federal contractors, but the majority of citizens are employed in the private and non-profit sectors, which makes them vulnerable to discrimination, harassment, and termination.
The bad news is that securing rights for gays and lesbians will shift discriminatory practices from overt to covert mechanisms. This does not mean judicial and legislative policies protecting LGBT rights shouldn’t be pursued, but it does mean we must be more proactive. If the legal victory in Obergefell is similar to rights secured for other minority groups – such as African-Americans, Hispanics, and women – then it will be prudent to keep a watchful eye on covert discrimination.
Covert practices include subjective, formal, or informal policies that may appear “neutral” on the surface but in fact have negative impacts or outcomes for a minority group. Historically in the U.S., once legal rights are secured for a minority group discriminatory practices shift from objective, formal, visible, and measurable to subjective, informal, invisible, and unmeasurable.
This is significant because if the policies and practices are hidden, then it becomes difficult to prove discrimination because there is either no evidence or it is subjective at best.
For example, the Civil Rights Act of 1964 prohibits discrimination based on color and sex, yet 50 years later African-Americans and women continue to earn less pay than their white male peers, even when controlling for education and experience. As such, the legislative policy made it illegal to discriminate against hiring women and minorities but it did not require equitable pay.
Similarly, if EDNA is passed in Congress one can expect gays and lesbians to be hired, but at lower salaries, unless equitable pay is required. If we are to learn from history, then we must fight for non-discrimination in hiring as well as in pay.
Dr. Lorenda A. Naylor is an associate professor at the University of Baltimore, College of Public Affairs, School of Public and International Affairs. She earned her PhD from American University, a Master in Public Administration from Kansas State University, and a Master in Public Health from the University of Kansas. She is a social equity researcher who focuses on vulnerable populations and access to government services. Dr. Naylor serves as the LGBT Chair for the American Society for Public Administration and serves on numerous editorial boards.