Interesting New Lawsuit Over Same-Sex Partner Benefits

A really interesting lawsuit has been filed against Walmart for refusing to give partner benefits to an employee whose spouse was of the same sex. The suit argues that this refusal is discrimination on the basis of gender, which I’ve long thought was a powerful argument.

The suit was filed by Jacqueline Cote, a Walmart employee from Massachusetts, who first filed a complaint with the Equal Employment Opportunity Commission. The EEOC agreed with her and issued a “right to sue” letter under Title VII of the Civil Rights Act. Her argument is that the refusal to provide partner benefits to the same-sex spouse of an employee is gender discrimination because the benefits would have been granted had the partner been male instead of female.

So why is this important? Because unlike sexual orientation, gender discrimination is illegal under all federal and state laws. And also because gender discrimination triggers heightened scrutiny rather than rational basis review, which means a lawsuit is much more likely to succeed. This is an argument that has been endorsed even by Steven Calabresi, a near-legendary conservative law professor at Northwestern and co-founder of the Federalist Society. He used that to argue in favor of striking down laws banning same-sex marriage.

If this suit is successful and discrimination on the basis of sexual orientation is ruled to be the same as gender discrimination, the heightened scrutiny could allow for many more legal challenges against anti-gay discrimination in public accommodations, employment, housing and other areas. That is especially important in those states that do not have anti-discrimination laws that cover sexual orientation. This could end up being a big deal.

You can read the full complaint here.

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  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Now you people want to take away the benefits that belong to us Moral Americans and just give them to The Gays? Isn’t all that sexy man-on-man gay mansex enough of a benefit already?

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Now you people want to take away the benefits that belong to us Moral Americans and just give them to The Gays? Isn’t all that sexy man-on-man gay mansex enough of a benefit already?

  • macallan

    This is odd, Walmart’s own policies specifically prohibit that sort of discrimination. Then again, that might be a recent change ( only had to take the course ~2 months ago ) and may not be properly enforced ( which wouldn’t surprise anyone ).

  • macallan

    This is odd, Walmart’s own policies specifically prohibit that sort of discrimination. Then again, that might be a recent change ( only had to take the course ~2 months ago ) and may not be properly enforced ( which wouldn’t surprise anyone ).

  • http://artk.typepad.com ArtK

    @macallan

    Prior to Obergefell I would be stunned to learn that WalMart extended benefits to same-sex partners in states that didn’t mandate it.

  • http://artk.typepad.com ArtK

    @macallan

    Prior to Obergefell I would be stunned to learn that WalMart extended benefits to same-sex partners in states that didn’t mandate it.

  • scienceavenger

    I don’t know, this seems like a bit of a back door approach.

  • scienceavenger

    I don’t know, this seems like a bit of a back door approach.

  • scienceavenger

    But then I guess its better than ramming it down their throats.

  • scienceavenger

    But then I guess its better than ramming it down their throats.

  • whheydt

    The change was made in 2012. The specific issue was that the plaintiff’s spouse died of cancer and the failure to extend spousal medical benefits left her with $150K in medical bills. If she pulls this off (and I hope she does), it’s going to cost WalMart a good sized chunk of change and put the fear of similar suits in other companies if they don’t change, and change quick.

  • whheydt

    The change was made in 2012. The specific issue was that the plaintiff’s spouse died of cancer and the failure to extend spousal medical benefits left her with $150K in medical bills. If she pulls this off (and I hope she does), it’s going to cost WalMart a good sized chunk of change and put the fear of similar suits in other companies if they don’t change, and change quick.

  • eric

    @6: if this is about a pre-2012 policy then I’m skeptical she’ll win. In fact I’m somewhat surprised that the judge hasn’t already dismissed it; don’t they normally dismiss when a policy that is the target of a suit is changed to conform with what the suing party wanted?

  • eric

    @6: if this is about a pre-2012 policy then I’m skeptical she’ll win. In fact I’m somewhat surprised that the judge hasn’t already dismissed it; don’t they normally dismiss when a policy that is the target of a suit is changed to conform with what the suing party wanted?

  • xuuths

    Well, as I recall from the arguments in Obergefell, didn’t Chief Justice Roberts ask a similar question?

  • xuuths

    Well, as I recall from the arguments in Obergefell, didn’t Chief Justice Roberts ask a similar question?

  • mithrandir

    @7: As far as I can tell, the policy wasn’t changed retroactively. If Wal-Mart’s policy in 2012 is ruled to have been unlawful discrimination at the time, they are still liable for injuries as a result of that unlawful policy even if they revised said policies at a later date.

  • mithrandir

    @7: As far as I can tell, the policy wasn’t changed retroactively. If Wal-Mart’s policy in 2012 is ruled to have been unlawful discrimination at the time, they are still liable for injuries as a result of that unlawful policy even if they revised said policies at a later date.

  • http://www.gregory-gadow.net Gregory in Seattle

    And then there is this: EEOC rules that existing civil rights law bars sexual orientation-based employment discrimination. The decision, which determines how federal employment laws are to be enforced, is based on Title VII, aka the Civil Rights Act of 1964.

    “[T]he question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not,” the commission found. Instead, the commission stated that the question is the same as in any other Title VII sex discrimination case: “whether the agency has ‘relied on sex-based considerations’ or ‘take[n] gender into account’ when taking the challenged employment action.”

    The commission found that sexual orientation discrimination is sex discrimination for several reasons. Among the reasons, the commission stated, is because sexual orientation discrimination “necessarily entails treating an employee less favorably because of the employee’s sex” and “because it is associational discrimination on the basis of sex.”

    Title VII created the Equal Employment Opportunities Commission to oversee the act’s implementation. As such, they are given wide latitude in how those laws are interpreted and implemented. Historically, the courts have given the EEOC’s interpretation heavy preference when suits under Title VII come up. Since the above lawsuit is being filed as a Title VII challenge, it has a very, very good chance of succeeding.

  • http://www.gregory-gadow.net Gregory in Seattle

    And then there is this: EEOC rules that existing civil rights law bars sexual orientation-based employment discrimination. The decision, which determines how federal employment laws are to be enforced, is based on Title VII, aka the Civil Rights Act of 1964.

    “[T]he question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not,” the commission found. Instead, the commission stated that the question is the same as in any other Title VII sex discrimination case: “whether the agency has ‘relied on sex-based considerations’ or ‘take[n] gender into account’ when taking the challenged employment action.”

    The commission found that sexual orientation discrimination is sex discrimination for several reasons. Among the reasons, the commission stated, is because sexual orientation discrimination “necessarily entails treating an employee less favorably because of the employee’s sex” and “because it is associational discrimination on the basis of sex.”

    Title VII created the Equal Employment Opportunities Commission to oversee the act’s implementation. As such, they are given wide latitude in how those laws are interpreted and implemented. Historically, the courts have given the EEOC’s interpretation heavy preference when suits under Title VII come up. Since the above lawsuit is being filed as a Title VII challenge, it has a very, very good chance of succeeding.

  • macallan

    @3: I’m fairly sure it’s a recent change. The course I had to take was about employment law, basically whatever state & federal law requires plus their own policies, I remember being surprised that it mentioned discrimination by sexual orientation as a general no-no, not just where mandated by state or local law.

  • macallan

    @3: I’m fairly sure it’s a recent change. The course I had to take was about employment law, basically whatever state & federal law requires plus their own policies, I remember being surprised that it mentioned discrimination by sexual orientation as a general no-no, not just where mandated by state or local law.

  • whheydt

    Re: macallan @ #11…

    The EEOC yesterday announced that it believed that discrimination on the basis of sexual orientation to be illegal under Title VII. As a result, an EEOC complaint filed over it will lead to permission to sue.

  • whheydt

    Re: macallan @ #11…

    The EEOC yesterday announced that it believed that discrimination on the basis of sexual orientation to be illegal under Title VII. As a result, an EEOC complaint filed over it will lead to permission to sue.