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The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a Mama Bear Lgbt Mom Gift Shirt woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.

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If we qualify for Title VII protection it’s pretty solidly established that we are a protected class, which is going to make it very hard to pull the kinds of Mama Bear Lgbt Mom Gift Shirt shenanigans they’ve been up to until now. You can’t make the argument now that we don’t qualify for civil rights protections, and if we qualify for one part of the activities you can’t turn around and say we don’t qualify for the rest of it. I doubt insurance companies are going to walk back the clock. It would cost too much to fight in court and the stakes are now way too high.

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Making a discrimination case is all about eliminating constants until you can pin down a variable. If that variable is a protected class, you win.  Employers can try to provide a “legitimate, nondiscriminatory reason” for the termination as a defense, but that’s basically just them trying to claim there was a Mama Bear Lgbt Mom Gift Shirt relevant variable other than race. Here, assuming there are no other relevant variables, we can see that sexual orientation discrimination is sex discrimination, as the only difference between Al and Cynthia is that he is male and she is female. In other words, Al should get a pile of money out of you, you filthy discriminated person.

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