Wednesday, March 30, 2016

The Walmart Case That Could Expand Gay Rights at Work - Bloomberg Business

While some may see this as a case of gold-digging, the reality of it is it is not and has important implications.  The main premise, discrimination based on sexual orientation is discrimination based on gender.  Under Title VII, the EEOC has determined the reason for treating people differently is gender; it is based on the sex of the spouse.

As the article also notes it Walmart's "public persona" at risk as well, "If the company continues defending its old policy, that could carry significant reputational risks. Walmart boasts a 90 percent rating on the Corporate Equality Index compiled by the LGBT nonprofit Human Rights Campaign and last year drew friendly media attention for joining LGBT activists in opposing a religious liberty bill in its home state of Arkansas that would have shielded businesses that discriminated against LGBT customers. Walmart didn’t move to dismiss the Cote case after it was filed in July; efforts to settle the dispute through the EEOC before Cote sued were unsuccessful."
Is anti-gay discrimination a form of sex discrimination? Walmart Stores, the biggest private employer in the U.S., is the target of a lawsuit that might soon provide an answer to that question.

Walmart didn’t extend spousal health benefits to employees in same-sex marriages until January 2014, even in states where same-sex marriage was legal. Before then, when workers such as Jackie Cote applied for coverage for their same-sex spouses, Walmart rejected their requests, as it has maintained it had the right to do. While the Supreme Court last year ruled that same-sex couples have the right to marry, the Civil Rights Act of 1964 doesn’t mention sexual orientation.

The act does provide protection on the basis of sex, and that’s a premise of the lawsuit Cote filed last summer on behalf of herself and a class of plaintiffs that lawyers now estimate to be 1,200 current and former Walmart employees. Cote, who has worked at Walmart since 1999, married Diana Smithson in Massachusetts in 2004. In 2012, Smithson, a breast cancer survivor, was diagnosed with stage 3 ovarian cancer. Within two years, without Walmart insurance to cover Smithson’s treatment, the couple racked up more than $150,000 in medical bills. “I thought that they would really have no choice because I was legally married in the state of Massachusetts,” Cote says.

Seeking compensation for the benefits that were denied and out-of-pocket medical expenses, the suit alleges that Walmart’s stance was unlawful because it’s a form of sex discrimination. “The sex of her spouse is the reason for treating people differently—isn’t that discrimination based on sex?” asks attorney Gary Buseck, legal director for Gay & Lesbian Advocates & Defenders, one of the advocacy groups representing Cote.

The case, among a recent wave of lawsuits over the past several years to grapple with this question, is headed to mediation on Feb. 22; if a settlement isn’t reached, it’s scheduled for trial in federal court in Massachusetts in November. Legal experts, civil rights advocates specializing in anti-gay and gender-identity bias, and employment lawyers who defend large companies say whatever the outcome, the case against Walmart could help set a precedent by expanding the definition of sex discrimination. That might lead other employers to reconsider the risks of discriminating on the basis of sexual orientation. The argument that sexual-orientation discrimination is a form of sex discrimination can apply to other types of workplace bias as well, such as employees alleging they were fired or denied promotions for being gay.
The Walmart Case That Could Expand Gay Rights at Work - Bloomberg Business

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