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Helping You Navigate Workplace Issues in California

Discrimination Against Same-Sex Spouse and Sex Discrimination at Work

Can an employee find protections against discrimination through claims of sex discrimination—rather than discrimination based upon sexual orientation or gender identity—in order to expand gay rights in the workplace? That is the question recently posed by an article in Bloomberg Business in relation to a Walmart employee’s workplace discrimination claim. If the court decides in favor of the employee, the case could substantially expand gay rights at work, given that the current language of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex (but does not specifically prohibit discrimination on the basis of sexual orientation or gender identity).

Employee Alleges Treatment Against Same-Sex Spouse Amounts to Sex Discrimination

In this specific case, the plaintiff, Jackie Cote, has been an employee at a Walmart store since 1999. She legally married her wife, Diana Smithson, in Massachusetts in 2004 in a same-sex marriage. In 2012, Smithson was diagnosed with stage 3 ovarian cancer, and at the time she was a breast cancer survivor. Walmart insurance refused to cover Smithson’s medical bills because of “Wal-Mart’s discriminatory national policy, pattern, and practice of refusing to provide employees with spouses of the same sex health insurance benefits for their spouses,” see case.

Because Walmart refused to provide benefits for Cote’s spouse, the couple  has accumulated medical bills of more than $150,000 in the course of Smithson’s cancer treatment. Although Cote and Smithson were legally married, Walmart nonetheless refused to provide spousal benefits to Smithson.

Learning More About Cote v. Wal-Mart Stores, Inc.

In most cases, employees might try to argue that discrimination based on sexual orientation—a form of discrimination not specifically prohibited by federal law—is illegal. However, Cote recognized that this could be an unnecessarily arduous path. Instead, she contends that Walmart has discriminated against her spouse based on sex—a form of discrimination that is specifically prohibited by law.

She filed a lawsuit last summer, Cote v. Wal-Mart Stores, Inc., in which she specifically alleges that “Wal-Mart refused to provide employment-based spousal health insurance benefits for same-sex spouses of eligible Wal-Mart employees because Jackie and other putative Class Members are or were married to a person of the same sex during their employment at Wal-Mart.” In other words, Cote contends that this is indeed a case of sex discrimination in that Wal-Mart treated her differently because of the sex of her spouse.

Commentators suggest that the outcome of the case could be big news for LGBT rights and sex discrimination claims across the country, including in Florida. Cote’s case is currently in mediation, but if she and Walmart cannot reach a settlement, it will go to trial in federal court. The basis of Cote’s claim is not a new one, and in fact it has substantial support. According to a member of the Equal Employment Opportunity Commission (EEOC), arguing sex discrimination in this situation makes a lot of sense. To be sure, the EEOC has articulated that “anti-gay discrimination is inherently a form of sex discrimination.”

Although a federal judge will not have to defer to the EEOC, its stance may be persuasive nonetheless. And if Cote wins the case, employers like Walmart may be deterred from discriminating against same-sex married couples in the future.

If you have questions about filing a workplace discrimination claim in Florida, an experienced Palm Beach County employment discrimination attorney can help. Contact Scott Wagner & Associates, P.A. today to learn more about our services.

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* Cathleen Scott is licensed to practice in Florida only.

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