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Advocates in the US argue current law already bans workplace discrimination against gays and lesbians -- but the Supreme Court needs to weigh in.
Lydia DePillis

23 Feb 2016 - 9:42 AM  UPDATED 23 Feb 2016 - 9:51 AM

WASHINGTON - The gay rights movement has made a lot of progress at the US Supreme Court in the past few years, with decisions tossing out the federal Defense of Marriage Act and then legalising gay marriage altogether. But one big piece of the puzzle is still missing: A ruling on the question of whether gays and lesbians are protected against discrimination in the workplace.

The person who replaces Antonin Scalia on the bench could decide the matter for good.

Gay and lesbian advocates have long argued that Title VII of the Civil Rights Act of 1964, by prohibiting discrimination on the basis of sex, also extends to discrimination on the basis of sexual orientation. Over the past few years, the Equal Employment Opportunity Commission has agreed, issuing a series of complaints and amicus briefs charging employers for violating the rights of gay, lesbian and transgender workers.

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A couple weeks ago, the Department of Justice also seemed to take that position, when it allowed a complaint of sexual orientation discrimination to move forward rather than dismiss it outright.

"In the past there has been a general understanding that sexual orientation wasn't illegal under federal law," says Paul Smith, a lawyer at Jenner and Block who has argued some of the nation's most significant gay rights cases. "And this one time, [the Justice Department] stopped making an argument. So that's been interpreted as a change in policy." The Justice Department did not respond to a request to clarify its intention.

The issue is likely to wind up at the Supreme Court. So far, district courts have issued rulings in both directions, and cases are pending at the 7th and11th Circuit Courts of Appeal. The high court tends to step in when appellate courts start disagreeing with each other, which could happen within the next couple of years.

At this point, it's hard to tell which suit will go all the way to the Supreme Court. Employers often settle these cases, agreeing to remedy the problem and make the parties whole rather than have their name associated with a decision that stands in the way of equal rights for gays and lesbians, at a time of rapidly rising acceptance.

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Right now, the plaintiff in one of those cases - against Wal-Mart, which didn't offer health insurance to their employees' same-sex spouses until 2014 - has more immediate concerns.

Last year, a Massachusetts Wal-Mart employee of 15 years named Jacqueline Cote sued the company for the cost of caring for her wife, Diana Smithson. Smithson had also worked for Wal-Mart, but stopped in 2008 to care for Cote's dementia-stricken mother. Then, in 2012, Smithson herself developed ovarian cancer.

Cote had assumed Wal-Mart's health insurance policy would cover the two of them. But Smithson was denied, and the couple racked up hundreds of thousands of dollars in medical bills before Wal-Mart changed its policy following the Supreme Court's 2013 decision in United States vs. Windsor deeming same-sex marriages to be equal to heterosexual ones.

Now, Smithson is in the late stages of cancer, already past the time doctors had estimated she would live. "It's been a rough go," Cote says. Her wife may not survive to see a resolution to the case, but would like to be able to pay her hospital bills. "That's her biggest issue right now, the fact that we weren't able to pay those doctors and nurses in the hospital for all the treatment she received," Cote says.

"If Wal-Mart tries to use [the Defense of Marriage Act] as a shield, I think they're barking up the wrong tree. Because in light of what the Supreme Court did in Windsor, DOMA never existed."

Last week, a notice seeking others affected by Wal-Mart's actions went out to the 1,200 current and former employees who enrolled a same-sex spouse in retailer's health plan after Jan. 1, 2014. The class action argues that, because the Civil Rights Act prohibits discrimination on the basis of sex, they should have been receiving benefits even before the Supreme Court invalidated the Defense of Marriage Act.

"We're not just saying, 'let's everyone move forward because it's not happening anymore.' These people were harmed, and should get justice," says Peter Romer-Friedman, deputy legal director of the Washington Legal Clinic for Civil Rights and Urban Affairs, which is helping with the case. "If Wal-Mart tries to use [the Defense of Marriage Act] as a shield, I think they're barking up the wrong tree. Because in light of what the Supreme Court did in Windsor, DOMA never existed."

Wal-Mart declined to comment on ongoing litigation. It's certainly possible, however, that the company will settle the case, leaving the legal arguments unresolved.

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Of course, Congress has the power to cut this process short, by passing a law banning discrimination on the basis of sexual orientation. Sen. Jeff Merkley, D-Ore., has introduced a more expansive version of the perennial Employee Non-Discrimination Act, but its prospects in a Republican Congress are not great.

"Winning some cases on the marriage equality front built an inevitability narrative, and that could help with the legislation in this context as well," says Greg Nevins, an attorney with Lambda Legal, a national organisation fighting for the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV. But if Congress doesn't budge, he thinks the high court will eventually affirm that gays and lesbians are protected under current law - at least, if Scalia's replacement sees things the same way.

"In that sense, we would want someone who wouldn't bring a negative, anti-gay agenda," Nevins says. "But for this purpose, someone who just agrees that Title VII should be interpreted according to its words would help our cause."

Lydia DePillis is a reporter focusing on labor, business, and housing. She previously worked at The New Republic and Washington City Paper. She's from Seattle.