In our July 2, 2015 blog, Obergefell v. Hodges – Same-Sex Marriage Now Legal in All 50 States, we indicated that employers may need to offer same-sex spouse health and welfare benefits and rethink domestic partner benefits in order to avoid discrimination claims.  Shortly after posting that blog, the Equal Employment Opportunity Commission (the “EEOC”) ruled that an allegation of sexual orientation discrimination inherently constitutes sex-based discrimination under Title VII of the Civil Rights Act.  See Complainant v. Foxx, EEOC Agency No. 2012-24738-FAA-03 (July 16, 2015).  While the EEOC’s ruling is not binding on private employers, employers should be aware that courts may give weight to the EEOC’s viewpoint.

In light of this ruling, employers may wish to consider expanding health and welfare benefits to provide same-sex spouses with equal benefits as are given to opposite-sex spouses.  Furthermore, because Title VII’s protections apply equally to heterosexual, as well as lesbian, gay, bisexual, and transgender employees, employers who continue to provide domestic partner benefits only to same-sex couples may be open to discrimination claims by opposite-sex domestic partners.  Employers might either expand domestic partner benefits to include opposite-sex domestic partners or eliminate domestic partner benefits, other than those required by state law.  For the Foxx ruling, click here.