EEOC drops new LGBTQ+ guidance

Yesterday, the EEOC launched a new "landing page" for Sexual Orientation and Gender Identity (SOGI) discrimination, along with a new Technical Assistance Document – Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity. Yesterday just-so-happened to be the anniversary of the Bostock v. Clayton County Supreme Court ruling (holding that Title VII prohibits workplace discrimination based on sexual orientation and gender identity), and June is also Pride Month.

Some highlights form the new technical assistance doc (aside from the obvious):

• Title VII also protects straight and cisgender employees from workplace discrimination;
• Customer or client preferences do not justify discrimination based on SOGI (an acronym I've never seen before, but I can already see it coming in handy);

• 

  Not official use.

  Employers may not require employees to dress according to their sex (transgender employees may dress or present consistent with their gender identity); 
• Employers do have the right to maintain sex-segregated bathrooms, locker rooms, or showers for men and women, but "employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity."
• Using the wrong name and pronouns (i.e. not the ones identified by the employee) could be harassment - generally, "accidental misuse" will not create a hostile work environment but "intentionally and repeatedly" using the wrong name or pronouns could. 

All of these come with the giant caveat that this is the EEOC's interpretation of Title VII and the Bostock decision. The courts will not necessarily adopt the same interpretations, and generally afford less deference to "guidance" as opposed to regulations that have actually gone through the notice and comment rulemaking process. 

SCOTUS: Title VII prohibits sexual orientation and gender identity discrimination

Yesterday, the Supreme Court decided Bostock v. Clayton County - the Supreme Court website has been having trouble, so this is a link to SCOTUSblog (which excluded the appendices to make the file smaller). 

The Court consolidated Bostock and a couple others to address both sexual orientation and gender identity. Long story short, Justice Gorsuch authored a textualist 6-3 majority opinion:

In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.

Many jurisdictions already recognized sexual orientation or gender identity as protected classes. Now, the entire nation is covered - at least employers with 15 or more employees (who are therefore covered by Title VII). 

There may be some employers that are covered by state laws but not Title VII. For example, Pennsylvania employers with 4-14 employees fall under the PHRA, but not Title VII. And, the PHRA protects "sex" but not expressly sexual orientation of gender identity. Pennsylvania courts could conclude that the PHRA does not apply to sexual orientation and gender identity. Given Bostock, and my read on PA appellate courts currently, I doubt that will happen. But, we may still see it in other states. 

Today is the day! SCOTUS args on sexual orientation and gender identity discrimination

SCOTUS is back for a new season, and oral arguments kicked off yesterday. We've got a great double feature lined up for today:

Bostock v. Clayton County, Georgia (SCOTUSblog page) and Altitude Express Inc. v. Zarda (SCOTUSblog page):
Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

R.G. & G.R. Harris Funeral Homes Inc. v. EEOC (SCOTUSblog page):
Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.

Asking a court that leans heavy on textualism and originalism to re-imagine a 1964 sex discrimination statute to cover sexual orientation and gender identity might be a tall order. That said, the Court has issued a string of gay rights-friendly opinions lately, ranging from Lawrence v. Texas in 2003 to Obergefell v. Hodges in 2015. So, we'll see.

Do you want my entirely useless prediction? Of course you do. Chief Justice Roberts cobbles together a compromise position that reaffirms that sex stereotyping violates Title VII, but that Title VII does not cover sexual orientation per se. The four-justice liberal bloc concurs but writes separately to note that they would hold that Title VII does cover sexual orientation per se. In Harris Funeral Home, the Court holds that Title VII covers gender identity per se.

Don't take that to Vegas.

Finally, two reminders:

• These cases only matter because Congress has not amended Title VII to expressly cover (or not) sexual orientation or gender identity - Congress can moot these cases at any time and effectively reverse them after the fact; and

• Many state and local laws prohibit sexual orientation and gender identity discrimination - these cases do not change that. 

It's Happening! SCOTUS to hear sexual orientation and transgender workplace discrimination cases!

Yesterday, the Supreme Court granted certiorari in three cases.

First, the Court consolidated Altitude Express, Inc. v. Zarda and Bostock v. Clayton County, GA. The issue presented is:

Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

 About a year ago, I posted about Altitude Express, and asked "Will this be the case that gets the Supreme Court to weigh in?" Welp, I guess it was. 

Notably, the Supreme Court also granted cert on a separate case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC:

The petition for a writ of certiorari is granted limited to the following question: Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).

 A slight re-wording from the actual petition - perhaps the "limited" review refers to the exclusion of a RFRA issue presented at the circuit court level?

It will be a while before we get a ruling. Of course, in the meantime, Congress can moot these cases any time it wants. These cases turn on statutory interpretation - Congress could amend Title VII to clearly include/exclude sexual orientation and/or gender identity.

Does Title VII protect employees from discrimination based on perceived sexual orientation?

Guess v. Phila. Housing Auth. is an interesting decision from the Eastern District of Pennsylvania. The Court addressed whether an employee could proceed under Title VII for a claim that he was discriminated against based on his perceived sexual orientation.

The short answer is 'no' (in this jurisdiction). As the Court noted:

The Third Circuit has held that discrimination because of sexual orientation is not discrimination because of sex for Title VII purposes. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 , 261 (3d Cir. 2001). I am not empowered to overrule that decision, although Plaintiff's arguments urging me to do so certainly warrant discussion . . . . 

The judge did include some of that discussion, noting that some of the bases for the Bibby decision have lost their support. Specifically, the Third Circuit has since minimized the impact of subsequent legislative history when interpreting statutes. And, the Third Circuit relied in part on precedent from other circuits, some of which have since overruled those decisions.

Additionally, plaintiffs can easily dress their sexual orientation discrimination claims up as gender stereotyping claims to avoid dismissal. Per the Court, "I am at a loss to conceive of a sexual orientation discrimination claim that could occur in so much of a vacuum as to be free of any gender stereotyping."

This whole issue of whether Title VII applies to sexual orientation appears to be reaching a decision point. We already have a circuit split. We have waffling EEOC input (based on changing administrations). Multiple petitions for certiorari are pending before the Supreme Court. Of course, the whole thing could easily be resolved with legislative action . . . but I'm not holding my breath.

PHRC: Pennsylvania law prohibits sexual orientation discrimination

Here in Pennsylvania, we have a workplace anti-discrimination law called the Pennsylvania Human Relations Act (PHRA). It's a lot like the federal laws (Title VII, ADA, ADEA). One notable distinction is that the PHRA applies to employers with 4 or more employees, whereas the federal antidiscrimination laws generally require 15 (20 for the ADEA). One similarity is that the PHRA prohibits "sex" discrimination but not expressly "sexual orientation" discrimination.

Well, the Pennsylvania Human Relations Commission recently issued some important guidance: PHRC Guidance on Discrimination on teh Basis of Sex Under the PHRA. A key takeaway:

The prohibitions contained in the PHRA and related case law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected class, prohibit discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression.

The PHRC will accept complaints from people alleging discrimination on the basis of sexual orientation or gender identity/transition/expression. But, will evaluate them "using any and all legal theories available depending on the facts of the individual case."

Some Thoughts on Masterpiece Cakeshop

By now, you have probably already heard that the Supreme Court issued its opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission. This is the case where the bakery refused to make a wedding cake for a same-sex couple, and was charged with violating Colorado's law against discriminating on the basis of sexual orientation.

The case set up a conflict between the First Amendment's free exercise clause (also, arguably, free expression - but the Court focused primarily on exercise of religious beliefs), and Colorado's civil rights law. The Court ducked the major issues to issue a narrow ruling. Ultimately, the Court ruled for the cakeshop but based on some circumstances that were very specific to this case:

• At a public hearing, a Colorado commissioner made some stupid comments disparaging the cakeshop owner's religious beliefs as "despicable" and merely "rhetorical," and invoking religious defenses of slavery and the holocaust. That type of anti-religious commentary is a recipe (sorry, I couldn't resist) for First Amendment issues. 

• "[O]n at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service." In other words, each bakery's viewpoint appeared to dictate the result. That type of disparate treatment just won't cut it (dammit, I can't help myself). 

• The Court also noted that same-sex marriage was not yet legal in Colorado, but that wasn't really a main ingredient in the Court's opinion - more like icing on the cake (okay okay, I'm done now). 

Perhaps as important as the decision itself is what the decision is not. 

• First, the cakeshop here offered to sell the same-sex couple "birthday cakes, shower cakes . . . cookies and brownies." This was not a case about generally refusing service on the basis of sexual orientation. 

• Even in the context of same-sex weddings, the Court expressed skepticism about how far businesses could go with a First Amendment argument. The Court noted that clergy can obviously refrain from performing marriage ceremonies. "Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations." Yes, Justice Kennedy, the extent of the exception and its confines are *exactly* why we're here! Alas, he never gets there, relying on the rationale above instead. 

• This decision is most definitely not a license to discriminate against the LGBTQ community generally. In fact, quite the opposite, as the Court notes: "[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."

In short, the eagerly anticipated decision was mostly a dud. A reaffirmation that government agencies can't be openly hostile to religious beliefs and engage in viewpoint discrimination. The Court failed to address the difficult line-drawing issues that will surely keep the lower courts busy in the near future. 

6th Cir.: Title VII prohibits discrimination against transgender and transitioning employees

Earlier today, the Sixth Circuit held in EEOC v. Stephens:

Not official use.

Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.

Title VII prohibits "sex" discrimination but makes no mention of transgender or sexual orientation. However, this is the latest in a line of cases broadening the meaning of sex discrimination, and utilizing gender stereotyping theories, to afford protection to LGBT employees.

Just last week, the Second Circuit held that Title VII prohibits sexual orientation discrimination.

2d Cir: Title VII prohibits sexual orientation employment discrimination

Yesterday, the Second Circuit  issued its opinion in Zarda v. Altitude Express, Inc. The Court, sitting en banc* held:

Not official use. 

We now hold that sexual orientation discrimination constitutes a form of discrimination “because of . . . sex,” in violation of Title VII.

The Seventh Circuit (en banc) came to the same conclusion last year. Will this be the case that gets the Supreme Court to weigh in? We don't know yet. SCOTUS may be waiting to see how some of the other circuits rule now that this modern re-interpretation is gaining momentum.

*Ordinarily Circuit Courts of Appeals decide a case with a 3-judge panel. "En banc" means that all of the judges on the Court participated in deciding the case (usually a sign that the Court viewed it as an important issue).

Lawffice Links - 7th Circuit Holds Title VII Prohibits Sexual Orientation Discrimination

Big news! Title VII of the Civil Rights Act has prohibited workplace sex discrimination since 1964. Yesterday, the Seventh Circuit Court of Appeals issued an opinion: "we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination." In other words, Title VII prohibits workplace sexual orientation discrimination.

I baked some Lawffice Links for the occasion:

• The Court's opinion (Hively v. Ivy Tech Comm. Coll. of Indiana); concurring opinion (Flaum); concurring opinion (Posner); dissenting opinion (Sykes).
• Eric Meyer has a good overview-by-excerpts at The Employer Handbook. 
• My friend from law school, Josh Blackman, with "instant analysis" on a Twitter moment. 
• Cases this big even get MSM attention, including WaPo:  Gay rights organizations hail court ruling as “game changer.”
• Finally, I don't see anything up yet, but keep on an eye on SCOTUSblog - I have a feeling we're going to see this issue at SCOTUS sooner rather than later.  

11th Circuit on Sexual Orientation Discrimination Under Title VII

On Friday, the Eleventh Circuit Court of Appeals issued its opinion in Evans v. Georgia Reg. Hosp. The plaintiff alleged that she was discriminated against on the basis of her sexual orientation in violation of Title VII. Of course, Title VII does not specifically list "sexual orientation" as a protected class, so:

Not official use.

Evans next argues that she has stated a claim under Title VII by alleging that she endured workplace discrimination because of her sexual orientation. She has not. Our binding precedent forecloses such an action. Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (“Discharge for homosexuality is not prohibited by Title VII . . . .”). “Under our prior precedent rule, we are bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en banc or by the Supreme Court.” Offshore of the Palm Beaches, Inc. v. Lynch, 741 F.3d 1251, 1256 (11th Cir. 2014) (internal quotations omitted).

* History lesson: Some District Courts from the Fifth Circuit split off to form the Eleventh Circuit in 1981, so the Eleventh Circuit treats prior Fifth Circuit decisions as binding precedent.

That's not necessarily game over though. As the Court recognized, employees may bring claims under Title VII for discrimination or harassment on the basis of gender nonconformity (or "sex stereotyping"). The Court did not provide much analysis on this issue, but held:

Evans’s pro se complaint nevertheless failed to plead facts sufficient to create a plausible inference that she suffered discrimination. See Surtain, 789 F.3d at 1246. In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.

So, it affirmed the District Court's dismissal of her discrimination claim. However, it did reverse the lower court on one key issue - the lower court had dismissed her claim with prejudice. The Eleventh Circuit noted that the plaintiff has a right to amend her complaint once unless amendment would be futile. As she could plausibly plead additional facts to state a claim for gender nonconformity, the plaintiff was granted an opportunity to amend.

I suspect we'll see a petition to rehear this en banc (a request for the entire Eleventh Circuit to hear the case).

Fed. Ct.: Sexual Orientation Discrimination is Prohibited Under Title VII

The EEOC scored a victory in one of its recent sexual orientation discrimination cases. The Western District of Pennsylvania denied a motion to dismiss the claim in EEOC v. Scott Medical Health Center (opinion here).

We already knew that gender stereotyping claims could often fit certain fact patterns involving sexual orientation discrimination. The recent WD PA decision is surprising in the breadth of the holding:  

Not official use. 

The Court holds Title VII's "because of sex" provision prohibits discrimination on the basis of sexual orientation . . . . There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality . . . . [T]his Court concludes that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII's prohibitions on discrimination "because of sex."

But, wait... doesn't that contradict *binding* Third Circuit precedent?  Like, Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001)("It is clear, however, that Title VII does not prohibit discrimination based on sexual orientation."). The Third Circuit approvingly quoted Bibby more recently in Prowell v. Wise Business Forms, Inc. in 2009.

The Court (not very convincingly in my humble opinion) sidesteps that precedent by noting that Bibby did not present "the same arguments or analytical framework as that put forth by the EEOC in this case." The Court then strangely cites district court decisions from outside of the Third Circuit. The Court then notes that one method of statutory interpretation (citing Congress's inaction) has been viewed less favorably in other decisions. The Court then points out that Bibby relied on a lot of case law that pre-dated the SCOTUS gender stereotyping decision in Price Waterhouse (while ignoring that the actual decisions in Bibby and Prowell both *post*-date Price Waterhouse).  And then, to conclude, throws in a reference to Obergefell, the SCOTUS same-sex marriage decision that has nothing whatsoever to do with Title VII.

Because this is not a final order resolving the case, I do not think it can be appealed yet. If the parties continue to litigate and the employer ultimately loses, we could get a reconsideration of Bibby and Prowell at the Third Circuit.

Miles on New EEOC Retaliation Guidance

Not official use.

Straight from the shameless self-promotion department, here's a link to an HR BLR article regarding the EEOC's new retaliation guidance. I consulted with the author, Kate McGovern Tornone, and she included some quotes from me in the article.

You can read the EEOC's new Enforcement Guidance on Retaliation and Related Issues here. The article addresses a few hot-button issues, such as:

• New protection for bad faith or unreasonable internal reports;
• Protected activity relating to sexual orientation discrimination;
• The "manager rule"; and 
• ADA interference provisions.

Pennsylvania Gov. Tom Wolf to Sign Sexual Orientation & Gender Identity Anti-Discrimination Executive Order

Pennsylvania Governor Tom Wolf will reportedly "sign an executive order to prohibit discrimination by state contractors against people who are lesbian, gay or transgender." I have not seen the actual order yet, but Gov. Wolf posts his executive orders here - so keep an eye out.

Gov. Wolf

Employers that discriminate against employees on the basis of sexual orientation or gender identity are playing a dangerous game. Many states, unlike Pennsylvania, prohibit such discrimination. Here in Pennsylvania, we do have municipalities with anti-discrimination ordinances that cover sexual orientation and gender identity; and, state employee and state contractors will be covered by executive orders.

On the federal level, you have the EEOC's argument that Title VII's prohibition of sex discrimination already covers sexual orientation and gender identity. Throw in some courts protecting employees under a "gender stereotyping" theory that sounds an awful lot like protection for sexual orientation; and courts protecting transgender employees under Title VII.

Sure, employers can still make the argument that "sexual orientation" and "gender identity" are not expressly covered under Pennsylvania's state law (PHRA) or Title VII... but it's not clear how far that will get them.

UPDATE: Copy of the EEOC's Complaint in the Pennsylvania Sexual Orientation Discrimination Case

As I noted earlier today, the EEOC launched two new lawsuits alleging that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII. You can view a copy of the Complaint in the Pennsylvania case (EEOC v. Scott Medical Health Center) here.

The alleged harassment is very sexual orientation-specific. For example, homophobic slurs, and this allegation (earmuffs kids):

Not official use.

McClendon routinely made other unwelcome and offensive sexual comments to Baxley. For instance, upon learning that Baxley is gay and had a male partner (and to whom he is now married), McClendon made highly offensive statements to Baxley about Baxley’s relationship with the partner such as saying, “I always wondered how you fags have sex,” “I don’t understand how you fucking fags have sex,” and “Who’s the butch and who is the bitch?”

I still think this case lends itself to established gender stereotyping and male-on-male sexual harassment analysis without necessarily reaching the EEOC's endgame of establishing that "sexual orientation discrimination necessarily entails treating an employee less favorably because of his sex." Only time (and a few court decisions) will tell.

It has begun - EEOC files sexual orientation discrimination lawsuits

Well, we knew it was coming, we just didn't know when. Yesterday, the EEOC issued a press release: EEOC Files First Suits Challenging Sexual Orientation Discrimination as Sex Discrimination. One exciting piece of news (for me) was that the EEOC filed one of its two new sexual orientation discrimination lawsuits in the Western District of Pennsylvania! That's my circuit (the Third Circuit), although I primarily practice in the Middle District of Pennsylvania.

The EEOC describes the PA lawsuit as:

Not official use.

In its suit against Scott Medical Health Center, EEOC charged that a gay male employee was subjected to harassment because of his sexual orientation. The agency said that the male employee's manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life. When the employee complained to the clinic director, the director responded that the manager was "just doing his job," and refused to take any action to stop the harassment, according to the suit. After enduring weeks of such comments by his manager, the employee quit rather than endure further harassment.

Frankly, this sounds like it has the potential to be decided in favor of the employee without a broad holding that Title VII necessarily prohibits sexual orientation discrimination. We'll see though.

EEOC makes the case for Title VII prohibiting sexual orientation discrimination

Last week, the EEOC filed an amicus brief in an Eleventh Circuit case, Burrows v. The College of Central Florida. You can read the EEOC's brief here.

In its brief, the EEOC lays out its argument that "Sexual orientation is cognizable as sex discrimination under Title VII." The headings from its brief:

A. Sexual orientation discrimination necessarily involves sex stereotyping, in violation of Title VII 

B. Sexual orientation discrimination constitutes associational discrimination that violates Title VII 

C. Sexual orientation discrimination is, by definition, discrimination “because of . . . sex,” in violation of Title VII. 

D. The contrary cases on which the district court relied are not persuasive authority

I think the EEOC is fighting an uphill battle here, but I guess we'll see. Homosexual employees have had some success arguing the "gender stereotyping" theory. For an example from the Third Circuit, see Prowel v. Wise Business Forms, Inc. (prior Lawffice Space coverage here).

District Court Agrees with EEOC: Title VII Prohibits Sexual Orientation Discrimination

Title VII makes it unlawful for employers to discriminate on the basis of sex, and other protected classes: race, religion, color, and national origin. However, Title VII does not prohibit sexual orientation discrimination - at least not expressly.

Earlier this year, the EEOC issued a decision concluding that sexual orientation discrimination is a form of sex discrimination and therefore Title VII forbids it. A few days ago, a district court agreed. In Isaacs v. Felder Servs., LLC, the Middle District of Alabama held:

Not official use.

Isaacs claims that he was discriminated against based on his sexual orientation. The court rejects the magistrate judge's conclusion that "[s]exual orientation discrimination is neither included in nor contemplated by Title VII" . . . . This court agrees instead with the view of the Equal Employment Opportunity Commission that claims of sexual orientation-based discrimination are cognizable under Title VII . . . . However, this claim fails for the same reason Isaacs's other discrimination claims fail: He has offered no direct or circumstantial evidence to suggest that the decision of Felder Services to fire him was based on his sexual orientation.

I suspect we'll see more and more courts weighing in on this issue; and we'll probably see jurisdictional splits all over the place. I must note that this court could have avoided the issue altogether, but seemingly went out of its way to reach it.

Will the Supreme Court ultimately decide? Will Justice Kennedy, who has consistently ruled in favor of gay rights, side with the EEOC? Will Congress amend Title VII to expressly include sexual orientation? We'll see.

EEOC: "[D]iscriminaticm based on sexual orientation is necessarily . . . sex disdcrimination under Title VII"

Well, the administrative agencies have been busy lately! Yesterday, the EEOC issued a decision concluding that sexual orientation discrimination is "inherently" sex-based discrimination. HT: Nicole Fuentes on CaseText (including EEOC's full opinion). The EEOC based its decision on three different legal theories (a straight - no pun intended - disparate treatment claim, associational discrimination, and sex stereotyping):

[A]llegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex. An employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual's sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm or expectation that individuals should be attracted only to those of the opposite sex.

Something tells me we haven't seen the last of this issue . . . .

SCOTUS to Hear Same-Sex Marriage Cases

Yeah, you probably already heard the news, but I wouldn't be a very good employment law blogger if I didn't mention this. The Supreme Court will decide a pair of important same-sex marriage issues. Per the Court's Friday order, the issues are:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The outcome could affect a number of employment issues. For example, if the Court recognizes a right to SSM, the same-sex spouses would presumably be entitled to FMLA leave; benefits plan provisions applying to spouses would include these new marriages; the IRS would treat same-sex spouses the same as opposite-sex spouses, etc.

You can read further analysis of the upcoming SCOTUS cases as SCOTUSblog.