Seeing Straight in the Workplace: An Examination of Sexual Orientation Discrimination in Public Employment in the Aftermath of Lawrence v. Texas


Title VII does not explicitly protect homosexual employees from sexual orientation discrimination and the courts have generally refused to bootstrap sexual orientation discrimination into Title VII as a form of gender discrimination. Therefore, homosexual employees have had to depend on their constitutional rights to protect them from their public employers’ sexual orientation discrimination. Traditionally, the courts have allowed public employers to discriminate against homosexual employees so long as the employers’ reasons were rationally related to legitimate business purposes.

I argue that the Supreme Court’s reasoning in Lawrence v. Texas forces future courts to question the reasonableness of employers’ rational bases. Moreover, the Court’s reasoning opens the door for a future Court to declare homosexuals to be a suspect class and private, homosexual conduct to be a fundamental right. The courts would then apply strict scrutiny rather than a rational basis test to homosexual employees’ First Amendment, Equal Protection, and Substantive Due Process claims. Finally, I argue that the Court’s reasoning supports the enactment of the Employment Non-Discrimination Act.


Civil Rights and Discrimination | Labor and Employment Law | Law and Society | Sexuality and the Law

Date of this Version

November 2005