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Sexual Orientation, Gender Identity, Gender Stereotyping, and Other Legal Minefields Following the United States Supreme Court's Defense of Marriage Act Decision in United States v. Windsor

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Journal of American Law
September 2014

Courts across the country have long been reticent to recognize sexual orientation as a protected class for purposes of employment discrimination claims. Sexual orientation and transgender are not presently listed as a protected class under Title VII or most state laws. Without direct and specific statutory language providing such protection, courts have generally refused to afford legal protection, whether under state or federal law, to workers premised on discrimination due to GLBT status.

In light of the landmark U.S. Supreme Court case, U.S. v. Windsor, 133 S.Ct. 2675(2013), which partially struck down the Defense of Marriage Act (“DOMA”), this article will consider: (1) the ways that the Windsor decision affects employee benefits, including FMLA, retirement plans, and health coverage; and (2) the Winsor decision’s (perhaps unintended) creation of a “new protected class” of sexual orientation, transgender, and the like, potentially broadening employers’ exposure to workplace discrimination claims.

A survey of administrative decisions suggests that this trend has already begun. A significant minority – twenty one states – has codified protections against discrimination based on sexual-orientation, and sixteen states have prohibited gender identity discrimination. The EEOC has similarly determined that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.” However, while Windsor seems likely to encourage a trend toward recognizing sexual orientation as a protected class, it remains uncertain whether courts will reverse well-established precedent (i.e., sexual orientation is not a protected class) without first requiring legislative amendment. 

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