SAME-SEX UPDATE!
BY JEFF WEINTRAUB
DOL’s New Rule Requiring Employers to Allow FMLA Spousal Leave to Lawfully Married Same-Sex Spouses
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While there have been a number of federal-sector cases declaring sexual orientation to be a protected category under the federal employment statutes, a couple of recent federal-court private-sector cases holding that it is unlawful gender stereotyping under Title VII for an employer to fire a lesbian employee for failure to conform to a female stereotype, a number of private-sector sexual-orientation lawsuit settlements, a number of declarations by federal agencies that bar sexual-orientation discrimination against employees of the respective agencies, and a number of plaintiffs’ victories in state-law cases (in states protecting sexual orientation), no federal court in a private-sector case, in spite of EEOC’s recently clarified opinion that gender identity is protected under Title VII, has yet declared that Title VII’s sex-discrimination provisions protect sexual orientation—on the other hand, there have been hundreds of federal-court decisions establishing that the “sex” referred to in Title VII’s protections refers to biological sex (the status of being male or female), not to sexual preference. Will this change? Possibly, although it is perhaps more likely that such a change in the very essence of Title VII would come from new Congressional legislation, such as the Employment Non-Discrimination Act (ENDA) bill. Meanwhile, same-sex issues arise in contexts outside of just Title VII—for example, in the benefits arena: FMLA, ERISA, etc. In February, the DOL published its final rule relating to what constitutes a “spouse” under the FMLA. You may recall from our last discussion on the subject that, after the Windsor Supreme Court decision requiring the feds to defer to the states’ definitions of “spouse,” a number of federal agencies began to hold forth with regard to benefits available as to
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