Sexual orientation to become protected class? Wait and see….

Today and tomorrow the United States Supreme Court will hear oral argument on how America defines marriage.   It is unlikely that the final written decision will be issued until June so we will have to wait until then to find out. If the Supreme Court establishes a constitutional right to same-sex marriage, there may be enough public support for Congress to amend employment laws, including Title VII and the FMLA, to prohibit discrimination or retaliation based upon sexual orientation and to amend the definition of “spouse” in the FMLA regulations so that all same-sex married couples are included.  All eyes will be on Justice Kennedy, the swing vote, to see the kinds of questions he poses today during oral argument.  Sometimes you can gauge the direction a decision is likely to go by the types of questions the Justice asks.