In U.S. v. Windsor, Slip No. 12–307 (June 26, 2013), a much anticipated and widely-publicized decision, the Supreme Court of the United States partially struck down the Defense of Marriage Act (“DOMA”), which prohibited federal recognition of state-sanctioned, same-sex marriages. As a result, a same-sex marriage that is legal under state law will be recognized to the same extent as an opposite sex marriage for federal law purposes.1
The Windsor decision has two important implications. First, the decision affects employee benefits that employers provide, including retirement benefits and 401(k) plans; health and welfare plans; and FMLA leave.2 The second may be a bit surprising; the Supreme Court’s decision could broaden the exposure to workplace discrimination claims.
Sexual orientation is presently excluded from the list of protected classes under Title VII (which include race, color, religion, sex, and national origin). Additionally, there is not a separate federal statute protecting sexual orientation (as there exists for age, disability, genetic information).3 At least twenty-one states4 and the District of Washington have codified protections against discrimination based on sexual-orientation, but those that do not have express statutes, such as Ohio, have traditionally taken a hardline approach against recognizing employment discrimination based on sexual orientation. See Inskeep v. W. Res. Transit Auth., 7th Dist. No. 12 MA 72, 2013- Ohio-897, ¶23 (“However, until the legislature or the Ohio Supreme Court addresses the issue directly, we continue to follow the position that an allegation of discrimination because of sexual orientation alone is not actionable under R.C. 4112.02(A).”); Giannini-Baur v. Schwab Ret. Plan Servs., 9th Dist. No. 25172, 2010-Ohio-6424, ¶28 (“R.C. 4112.02 does not forbid discrimination on the basis of sexual orientation. As [plaintiff] has cited no authority establishing a clear public policy against discrimination based on sexual orientation, [defendants] were entitled to judgment as a matter of law on this claim.”).
Although it is too soon to tell exactly how classifications of protected individuals will change in light of rulings like Windsor, the rigid approach will likely soften. In fact, discrimination based on sex stereotyping or gender identity is already recognized by the Equal Employment Opportunity Commission (EEOC) as discrimination because of sex and therefore covered under Title VII. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). Title VII’s protections against sex discrimination have been interpreted to protect against employment action based on an employee’s failure to adhere to traditional gender standards or roles. Windsor and cases like it will certainly encourage a trend toward recognizing sexual orientation as a protected class—but it is unclear when that trend will blossom and whether courts will continue to refrain from reversing precedent without legislative amendment.
Should you have any questions related to Title VII or any other employment matters, please contact one of our Employment Practices Liability Group Members.
1 The Court did not strike down Section 2 of DOMA, which gives states the authority to refuse to recognize same-sex marriages performed under the laws of other states. Currently, some states, such as Ohio, have constitutional bans on same sex marriage, though same sex marriage is recognized in thirteen states: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington, as well as the District of Columbia.
2 The Windsor opinion did not specify when the decision will go into effect, or if it applies retroactively. If Windsor applies retroactively, individuals who were affected negatively by Section 3 of DOMA in the past might have the opportunity to seek tax refunds (at least with respect to years for which the statute of limitations remains open).
3 Although, at least twenty-one states already have some form of protection against discrimination based on sexual-orientation.
4 These states vary with respect to the extent and nature of the protections afforded. They include: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Massachusetts, Maryland, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.
