Courts still debating whether Title VII covers sexual orientation
Currently, there is no federal law specifically stating that discrimination based on sexual orientation is a form of sex discrimination. However, 22 states and the District of Columbia, as well as hundreds of municipalities have enacted laws prohibiting sexual-orientation discrimination.
And the US Equal Employment Opportunity Commission (EEOC) interprets sex discrimination prohibited under Title VII of the Civil Rights Act of 1964 to also mean discrimination based on sexual orientation or gender identity. We can also look at recent settlements involving health insurance benefits for same-sex spouses as supporting the EEOC’s position.
Late last year, the EEOC announced that Mon General Hospital in West Virginia agreed to settle a sex discrimination charge filed by its employee, Kathy McIntire, alleging that she was denied spousal medical benefits because she is married to another female. McIntire and her wife sustained financial losses when they had to pay for medical care and services that would have been covered had McIntire’s wife been eligible under Mon General’s benefits policy.
The parties reached a voluntary settlement through the EEOC’s conciliation process, which includes $8,900 in monetary relief to McIntire. The hospital must also communicate to its employees a new anti-discrimination policy that includes making same-sex spouses eligible for employer-sponsored benefits. Mon General must also provide the EEOC with a semi-annual report, indicating if any employees requested benefits for their same-sex spouse, and whether the requests were granted.
Walmart settles $7.5 class action lawsuit
In December, 2016, Walmart agreed to pay $7.5 million to current and former employees to settle a class action lawsuit claiming the retailer denied health insurance to same-sex spouses of employees from 2011 to 2013. The terms of the settlement are pending approval by the US District Court in Massachusetts.
The suit, filed by a former employee , Jacqueline Cote, claims she was denied medical benefits for her wife, who was diagnosed with ovarian cancer in 2012. Because their medical expenses were not covered, the couple racked up $150,000 in debt. In 2014, Walmart made the same health insurance benefits available to same-sex spouses of its employees that it offers to opposite-sex spouses.
Eyes on Hively vs. Ivy Tech
Meanwhile, a case involving a community college math professor, who claims she was fired because she is a lesbian, is expected to test whether Title VII explicitly covers sexual orientation as a protected class.
In her 2014 lawsuit, Kim Hively, who worked as an adjunct part-time math professor for 14 years at Ivy Tech Community College, in South Bend, Indiana, claims that because someone saw her kissing her girlfriend goodbye, she was denied a full-time job after applying six times and her contract was not renewed. The case is pending before the US Court of Appeals for the 7th Circuit in Chicago.
While the courts wrestle with the question of whether federal civil rights laws that prohibit discrimination against sex is the same thing as discrimination against sexual orientation, organizations should review and update their compliance training, anti-discrimination and code of conduct policies, employee handbooks and hiring practices to ensure that employees (and their spouses) and job applicants are not treated differently because of their sex, sexual orientation or gender identity.