Issues

In its 2015 landmark civil rights decision in Obergefell v. Hodges, the Supreme Court finally held that the Equal Protection and Due Process Clauses of the United States Constitution guarantee same-sex couples’ marital equality. The Court’s unprecedented declaration that the right to marry is a fundamental right under the Due Process Clause strengthened married couples’ right to privacy because it subjects government actions infringing on marital unions to heightened scrutiny. The Supreme Court has the option to minimize the impact of Obergefell by interpreting the right to marriage very narrowly—as only encompassing the right to enter into a state-recognized union with another person. However, drawling from Justice Douglas’ “penumbras principle” from Griswold v. Connecticut, this Note argues that interpreting the right to marriage to include its peripheral rights, like cohabitating, is the more principled approach. Using this approach, public housing authorities as government entities must prove that policies that disqualify ex-felons and arrestees from residing on their premises—even when their spouses are current residents—are necessary to further a compelling interest and narrowly tailored to be constitutional. Recognizing that a penumbra approach to interpreting the right to marriage would nonetheless leave non-marital families subject to broad governmental interference, this Note concludes by reasoning that non-marital families would have a strong argument that the differential treatment violates the Equal Protection Clause.

The Equal Pay Act (EPA) purports to prohibit employers from paying female employees less than male employees with similar qualifications; however, the affirmative defenses provided in the EPA are loopholes that perpetuate the gender pay gap. In particular, the fourth affirmative defense allows for wage differentials based on a “factor other than sex.” Many federal circuits have read this defense broadly to include wage differentials based on salary history. That is, an employer can pay a female employee less than her male counterparts because she was paid less by her previous employer. While salary history was once viewed as an objective data point for wage setting, research now demonstrates that reliance on salary history merely continues the gender discrimination of previous employers. This Note proposes that a model of recklessness in employment law should be applied to the EPA to cover employers who continue to use salary history to determine new hire salaries. Applying tort concepts, a plaintiff would show that the use of salary history is a gendered employment practice by satisfying two elements: first, her employer knew or should have known that using salary history carries the risk of perpetuating discrimination; second, her employer’s burden to reduce the risk of perpetuating discrimination was slight. This model allows a plaintiff to utilize an evolving understanding of gendered employment practices that perpetuate the pay gap in order to undermine the “factor other than sex” loophole in the EPA.