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.