Same-Sex & Immutable Traits: Why Obergefell v. Hodges Clears a Path to Protecting Gay & Lesbian Employees from Discrimination Under Title VII

20 J. Gender, Race & Just. 1 (2017) The article examines how Obergefell v. Hodges, the marriage equality decision might influence the interpretation of Title VII of the Civil Rights of 1964. Title VII is an employment discrimination statute that protects individuals on several bases, including sex. The article first argues that discrimination because sexual orientation should be recognized under Title VII as a form of sex discrimination. It then argues in the alternative that sexual orientation should be used as an extra-judicial (or "plus") factor. Courts have used plus factors, i.e., traits the statute doesn't protect (like sex or race) but which are used as a criterion to discriminate on the basis of a protected trait (like marriage). For instance, while marriage is not a protected trait, it is unlawful to hire married men while refusing to hire married women. The article uses existing case law to argue that sexual orientation should be treated like other plus factors and argues that it is an impermissible criterion on which to discriminate against workers on the basis of sex.