Sometimes it takes tragedy to challenge institutionalized discrimination. Justice officials in Massachusetts just determined that there is probable cause that Walmart discriminated against a lesbian employee when it denied health insurance coverage for her wife who is battling cancer. With the help of GLAD, Jackie’s search for legal justice and equal treatment can finally move forward in court. This case has major implications for any other same-sex couple denied equal access to healthcare because of their employer’s homophobic policies.
Jackie and Dee Smithson have been legally married since 2004, when Massachusetts legalized same-sex marriage. Walmart, Jackie and Dee’s longtime employer, refused to extend their healthcare coverage to same-sex spouses. Walmart’s neglect became life threatening when Dee was diagnosed with ovarian cancer in 2012. To keep her wife alive, Jackie was forced to shoulder the burden of over $100,000 in medical bills alone. The company Jackie loyally served for decades turned a blind eye to Dee’s suffering and Jackie’s struggle of juggling work, taking care of a sick spouse, and keeping the hounding collectors at bay.
Last fall, the couple had enough. Jackie and Dee reached out to the Boston chapter of GLAD, who took on their case and decided to challenge Walmart’s discriminatory policy in court. I spoke to Jackie, Dee, and GLAD lawyer Allison Wright about why their case holds major implications for same sex spouses across America.
AfterEllen.com: How did you two meet?
Jackie Smithson: We met in 1991 on The Cape. Dee actually was my boss for about three years.
AE: Jackie, what was your position at Walmart?
JS: I’m still working at Walmart. I’ve worked in five different stores in the nearly 16 years with the company. Dee had worked at Walmart from 1999 until 2006 or 2007, when she quit to be able to be my mom’s primary care giver.
AE: Were you out while working at Walmart? Did you encounter any discrimination before Dee’s illness?
JS: Yes, I’ve been out the entire time. The only time I experienced discrimination was when tried to add Dee to my medical insurance and was denied. I’ve been trying to add her every year since 2008.
AE: Tell us a little about yourselves!
JS: Dee and I have three furry “kids.” We have 2 beautiful and loving black cats. Magic is almost 15 years old and Trixie is almost 13 years old, and we have an Australian Cattle Dog mix named Morgan, who is 7. All of our pets have been rescues. There is a great feeling in saving the life of an animal. Dee’s son and daughter-in-law live in North Carolina. They come up when they can and we try to go there when Dee is up to it. Prior to getting sick, Dee visited them two to four times a year. We love them both very much! We are huge Red Sox fans, and love going to Fenway. We’ve also seen the Sox play in Toronto and Baltimore. We also enjoy NASCAR Racing. We’ve been to 2 races together; the first was in Atlanta many years ago, and the other was in New Hampshire.
AE: After you were legally married, how did Walmart explain not covering Dee’s health care?
JS: They explained they were self-insured, so they had to follow federal not state mandates. Our marriage was recognized by Massachusetts, and eventually other states, but not federally. However, within days after DOMA was overturned, I called our benefits department and asked about adding her. They said they had no plans to make changes to their policy. They said they would be contacting associates if there were any changes, and took down my contact information. Sure enough in August of 2013, someone called me to let me know that in 2014 associates with same sex spouses would be able to add their spouse to their medical insurance coverage.
AE: Did they say it would change soon, or just tell you to deal with it?
JS: Each year during the open enrollment, after not being successful in trying to add Dee, I would call the benefits department. Every time, I heard the same thing, that they weren’t ready to make “those” changes yet. I was told they discuss it each year, but still aren’t “at that point.”
AE: How did you first learn about Dee’s cancer?
JS: In mid-2012, Dee was having discomfort and what we now know are typical symptoms of ovarian cancer. Following a biopsy, we received the news. It shook us both to our core.
AE: What was the process of trying to get healthcare for Dee like?
JS: Frustrating, daunting and frightening are the three words that pop into my head. Especially so because we knew her private paid insurance expired shortly after the original diagnosis.
AE: What kind of treatment/procedures did Dee’s cancer require?
JS: Surgery, chemo—lots of chemo, frequent hospitalizations due to issues or side effects with the chemo causing anemia requiring blood transfusions, neuropathy in both feet, hair loss, the typical “chemo brain”, fatigue, very frequent blood draws for tests.
AE: What is Dee’s current prognosis?
JS: After an 18 month remission in August of 2014, we were told it was back. After several changes to the chemo drugs, and decreasing the dosage and frequency, the cancer is “at bay” right now. We try to take things one day at a time, sometimes hour by hour.
AE: How is Dee doing?
JS: She’s tough. Right now, she’s doing well. She’s getting chemo next week, and hopefully she’s able to avoid a hospital visit.
AE: What treatment is Dee currently undergoing?
JS: Right now she has a new schedule of chemo every 14 days. Hopefully her body will tolerate it.
AE: How are you coping with the medical expenses right now?
JS: Not very well. Dee has lost a lot of sleep, worried about all the bills. She wants the people who tried to save her life to be paid. She’s had some awesome doctors and nurses, CNA’s etc. Not being able to pay them is very, very hard for Dee.
AE: How did you get involved with GLAD?
JS: I actually had reached out to them in the past on a different issue. Janson Wu, now the Executive Director of GLAD, who was a Staff Attorney at the time called me to follow up on that situation. During our conversation, I brought up the inability to insure Dee, and we went forward from there.
AE: What (if any) case developments have occurred thus far?
Allison Wright: In September of 2014, we filed an EEOC charge of discrimination against Walmart on behalf of our client, Jackie. In our charge we alleged that Walmart’s exclusion of their employees’ same-sex spouses from coverage under its health insurance plan surmounted to discrimination against our client on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964. Title VII of the Civil Rights Act is a federal law that prohibits employment discrimination on the basis of sex and other protected characteristics. In January 2015, the EEOC found there was probable cause that Walmart discriminated against our client.
AE: What are the next steps for the case?
AW: Now that the EEOC has issued a probable cause determination, the EEOC will begin conciliation between our client and Walmart. The purpose of conciliation is to resolve the matter between our client and Walmart. We are currently awaiting conciliation with Walmart. Should conciliation fail, we will more than likely pursue this case in federal court.
AE: Why is this case important for the LGBT community? What kind of legal precedent would winning this case set?
AW: Title VII of the Civil Rights Act is a key piece of legislation that was enacted in 1964 that prohibits employment discrimination on the basis of race, color, religion, sex and national origin. Title VII does not explicitly prohibit employment discrimination on the basis of sexual orientation or gender identity, leaving the LGBTQ working force vulnerable to adverse employment actions. In fact, recent studies suggest that “LGBT workers face discrimination that makes it harder for them to find and keep good jobs, earn a living, and provide for themselves and their families.” “Employment discrimination against the LGBT community may include bias and discrimination in recruitment and hiring, on-the-job inequality and unfairness, and wage gaps and penalties.”
For this reason, it is imperative to strengthen employment discrimination protections for LGBTQ people under Title VII especially since there are only 18 U.S. states along with Washington D.C. that have laws protecting LGBTQ people from employment discrimination on the basis of their sexual orientation and gender identity. The fact that the EEOC recognized in this case that denying employees with same-sex spouses equal employment benefits constitutes sex discrimination under Title VII is one step closer to strengthening employment protections for the LGBTQ community. Should we end up taking this case to federal court and establish that denying employees with same-sex spouses equal employment benefits constitutes sex discrimination under Title VII, we would have succeeded in advancing a legal argument that makes clear that discrimination against same-sex spouses constitutes sex discrimination, which can be used as a persuasive legal argument across the country.
JS: I’m hoping the success of this case will give others the courage and strength to stand up for themselves and fight for the rights they deserve if they have in any way experienced any form of discrimination at work.
AE: What keeps you strong, both individually and as a couple?
JS: We tend to lean on each other a lot. It’s like we are strong for each other when we need to be. Additionally we have awesome family and friends that give us strength through their love, prayers, positive thoughts. We couldn’t get through this without them!
AE: How do you see your future?
JS: Dee and I have talked for years about growing old together, sitting in rocking chairs on our porch holding hands watching and enjoying nature, listening to the birds sing—I pray we can share that time together. The future is scary for me. I’m not ready to be a widow.