Wednesday, March 2, 2016
by Jeremiah Ho
In the wake of marriage equality at the Supreme Court, pro-gay rights cases that are trying to expand anti-discrimination protections based on sexual orientation have ensued. In the employment realm, there are a few pending cases that are trying to expand Title VII’s protections to include discrimination based on sexual orientation. One of them to watch for is Lively v. Fletcher Hospital, a case that was filed in federal district court in North Carolina on February 10, 2016.
Sandra Lively and Catherine Hipwell have been together as a couple for 15 years. Sandra has been a registered nurse at North Carolina hospital Park Ridge Health since 2012, while Catherine is self-employed. In 2005, Catherine was diagnosed with stage three uterine cancer and has been through intensive treatment. In October 2014, after North Carolina permitted same-sex marriages, Sandra and Catherine were quickly married. Soon afterwards, Sandra sought health care coverage for Catherine through Park Ridge Health, but was rejected repeatedly. Catherine, as a cancer survivor, needs health coverage. However, with Park Ridge Health’s refusal to cover Catherine and cuts in her subsidy through the Affordable Care Act because of her marital status, thousands of dollars were spent out-of-pocket for a private health plan. After Sandra complained through the EEOC in April 2015, Park Ridge Health changed its policy and allowed Catherine to enroll in May. But Park Ridge Health still refuses to reimburse the couple for the expenses they incurred for private coverage while they were denied enrollment in the employee plan. A suit filed by Lambda Legal alleges that Park Ridge Health’s prior policy of denying spousal coverage to married same-sex couples on the basis of sex and religion violated Title VII of the federal Civil Rights Act of 1964 and the Equal Pay Act.
Although Title VII does not explicitly protect sexual orientation, it does protect against sex discrimination. In addition, the EEOC has recently ruled that sexual orientation discrimination is protected under sex discrimination. Among her several Title VII claims (including one for sex discrimination), Lively’s claim tries to extend her sex discrimination claim to also cover discrimination based on sexual orientation. Her complaint reads: “Sexual orientation inherently is a sex-based consideration because sexual orientation cannot be defined or understood without reference to sex. Ms. Lively’s sexual orientation as a lesbian is inseparable from, and inescapably linked to, the fact that she is a woman who fell in love with and married another woman.” In this way, “denying spousal coverage to Ms. Lively based on her sexual orientation denies her spousal coverage based on her sex.”
Now that the same-sex marriage question has been directly resolved by the Supreme Court, will litigation such as Lively’s, which uses marriage, in part, to leverage toward antidiscrimination finally bring actual progress for more protections based on sexual orientation? The question from the federal district court in North Carolina is one to watch.