One More Step Towards Sexual Orientation As A Protected Class

The EEOC just announced a “conciliation” agreement with a hospital in West Virginia for $8,900.  That is, a voluntary settlement through the EEOC’s conciliation process.

So why is this news?

Well, it seems that an employee alleged “that she was denied spousal medical benefits for the sole reason that she is a female married to another female.”  But we know that sexual orientation is not, as yet, covered by Title VII, right?

Place Name Sign, Thing, Experience

True, but the EEOC is hotly pursuing at least two cases in the federal appeals courts, one of which I predict will result in such coverage.   See my post of October 21st where I noted that “It may happen that sexual orientation will become a protected class — perhaps the last piece of the puzzle that is gender/identity/orientation under Title VII.”

And take a look at a great discussion of this issue in the recent post by my partner Amy Epstein Gluck.

Notwithstanding this “gap” in Title VII coverage, the EEOC is also taking in and adjudicating charges involving sexual orientation — and this is one of them.  That three top officials of the EEOC are quoted on this relatively small case is significant:

The EEOC Chairperson said that “No one should be denied access to medical benefits simply because of who they are or whom they love.”

The EEOC area director said that “By reaching this agreement, the company is demonstrating its commitment to ensuring that all of its employees will enjoy benefits that do not exclude coverage to individuals based on their sexual orientation.”

And the district director of EEOC’s Philadelphia District said, “EEOC is committed to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation.”

Takeaway:  Seems that the EEOC is not only pursuing cases in the courts and internal charges with vigor, but also building a record that sexual orientation as a protected class under Title VII’s ban on discrimination based upon sex is already a fait accompli.



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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]