You’ve Built the Bridge, Why Don’t You Cross It? A Call for State Labor Laws Prohibiting Private Employment Discrimination on the Basis of Sexual Orientation

The call for legal reform to prevent discrimination on the basis of sexual orientation has been prevalent since at least the 1970s. Part I of this Note examines sexual orientation as a protected status at the federal and state level. Tracing the development of case law interpreting Title VII, it is evident that current federal laws have been of little use to gay men and lesbians. As a result, employment discrimination against homosexuals has been widespread. Part II of this Note discusses how the foundation for reform already has been created at the state level. This foundation began with state legislatures’ repeals of sodomy laws. This decriminalization, or “legalization,” of private sexual activity should be recalled by states considering a prohibition of employment discrimination on the basis of sexual orientation. State legislatures also should note recent state actions to protect the right of employees to engage in legal activities, such as smoking, outside of the workplace. These legislatures have voiced strong concerns for the right to privacy and the right to work, which are violated when an employer makes employment decisions based upon an employee’s legal activity conducted outside of work that does not affect his work performance. Finally, Part III of this Note calls on the states that have legalized private homosexual activity and have protected legal activities conducted outside of the workplace to follow the internal logic of their laws and protect employees from employers who discriminate on the basis of sexual orientation in the same fashion that employees who smoke are protected from overintrusive employers. By requiring employers to focus more on on-the-job misconduct, and less on off-the-job, legal activities, states can bring more of us a little closer to realizing the promise of living in a kinder, gentler nation.