Avoiding Discrimination Claims After Obergefell

In June 2015, the Supreme Court of the United States issued its long-awaited opinion in Obergefell v. Hodges, striking down bans on same-sex marriage as unconstitutional and legalizing same-sex marriage in every state (135 S. Ct. 2584, 2605 [2015]). The Court articulated that "the Nation's traditions make clear that marriage is a keystone of the Nation's social order... yet same-sex couples are denied the constellation of benefits that the States have linked to marriage."

Following Obergefell, employers must carefully consider the risk of a discrimination claim for exclusion based on sexual orientation. Although a state law discrimination claim relating to providing benefits to a same-sex spouse may be preempted by ERISA, employers should be aware that a number of states recognize a right of action for discrimination based on sexual orientation and gender identity (see American Civil Liberties Union, Non-Discrimination Laws: State by State Information, available at https://www.aclu.org/map/non-discrimination-laws-state-state-information-map ). Those states include Washington, Oregon, California, Nevada, Utah, Colorado, New Mexico, Hawaii, Minnesota, Iowa, Wisconsin, Illinois, New York, Vermont, New Hampshire, Maine, Massachusetts, Rhode Island, Connecticut, New Jersey, Delaware, Maryland, and Washington, D.C.

Although federal legislation (in 2015, the Equality Act and, before that, the Employment Non-Discrimination Act) has been introduced seeking to prohibit sexual orientation discrimination, current federal statutes do not explicitly recognize sexual orientation as grounds for a discrimination claim. Cautious employers, however, should proceed as though sexual orientation discrimination can form the basis of a Title VII or Section 1981 claim. Case law is well established that Title VII bars discrimination based on gender stereotyping in addition to biological sex (Price Waterhouse v. Hopkins, 490 U.S. 228, 235 [1989]; see also Glenn v. Brumby, 663 F.3d 1312, 1316 [11th Cir. 2011]; Smith v. City of Salem, 378 F.3d 566, 572 [6th Cir. 2004]; "The Supreme Court made clear that in the context of Title VII, discrimination because of 'sex' includes gender discrimination"). At least one court has reasoned that sexual orientation discrimination is "often, if not always, motivated by a desire to enforce heterosexually defined gender norms" ( Centola v. Potter, 183 F. Supp. 2d 403, 410 [D. Mass. 2002]).

Federal courts that have addressed the issue...