I’ve blogged here and here about the impact of Obergefell v Hodges on certain state-regulated benefits and on family leave laws. (This is the case in which the U.S. Supreme Court ruled that states must allow and recognize same-sex marriages.) Now, don’t get me wrong. Those are potentially significant changes. Beyond that, however, does Obergefell really mean a change for employers–and does it matter? To answer that we would have to look relevant employment law issues in light of what the Supreme Court’s ruling actually says. The EmpLAWyerologist will attempt exactly that–after the jump…
We already established that in Obergefell the Supreme Court said states must allow and recognize same-sex marriage. That means that employers are obligated to give the same benefits and the same recognition to employees in same and opposite-sex marriages, right? Aren’t we done here?” Well, it’s a bit more nuanced than that. Some employers may try to take advantages of those nuances. That, in my humble opinion, is a very bad idea, but let’s not get ahead of ourselves.
The Supreme Court based its decision that states must allow and recognize same-sex marriages on the Equal Protection Clause. You can find the Equal Protection Clause within the Fourteenth Amendment of the Constitution. Specifically, the Equal Protection Clause says that no state shall deny to any person within its jurisdiction “the equal protection of the laws”. Nowhere does the Equal Protection Clause say anything about private individuals or private employers. The Fourteenth Amendment does not actually mandate that private employers recognize same-sex spouses as spouses. Furthermore, Obergefell does not directly address discrimination based on sexual orientation or gender identity in employment or any other context.
Wait a minute. Didn’t we establish previously that employers would have to recognize same-sex spouses as spouses when determining FMLA eligibility or other benefit eligibility? Yes–to the extent that a private employer is subject to a federal or state law that specifically refers to marriage or spouses. FMLA is a federal law that requires the employer to provide up to 12 weeks of unpaid, job-protected leave to take care of a parent, child or spouse. Some federal and state laws relating to benefits also refer to spouses. To the extent that a private sector employer is subject to such laws they will have to recognize same-sex spouses in that context as well.
So does that mean that private-sector employers don’t have to recognize same-sex spouses and marriages if the issue does not involve FMLA or federal or state-regulated benefits? Some might argue that in theory the answer is yes. Here is how I would phrase it: The Supreme Court ruling in Obergefell does not require private-sector employees to recognize same-sex marriages and same-sex spouses in all instances. But the inquiry does not end there.
First, the IRS and the Department of Labor will issue regulations that should provide guidance as to how and when benefits must be offered to same-sex spouses. Second, many States already have or will have their own laws that require recognition of same-sex spouses or marriages. Last week I mentioned that in those States with laws prohibiting discrimination based on marital status, such a refusal is most likely illegal on that ground. (Click here for review.) Many states also have laws prohibiting discrimination based on sexual orientation and gender identity. In those States, refusing to offer benefits to same-sex spouses will also be illegal. Similarly, those laws in all likelihood would also require private-sector employers to recognize same-sex spouses in the context of bereavement leave policies, or confidentiality policies that allow employees to disclose confidential, proprietary information to one’s spouse, or, company policies as to who can be named as an emergency contact.
If you read my post regarding Title VII and sexual orientation and gender identity discrimination (click here if you did not) then you know that the EEOC takes the position that Title VII does protect employees against such discrimination. The EEOC has just ruled 3-2 that all types of discrimination based on sexual orientation are protected under Title VII of the Civil Rights Act. The case involved a federal air-traffic specialist who claimed he was denied a promotion because he was gay. Now, EEOC rulings are not law. Courts may, but do not have to, give weight to EEOC rulings. At the same time though, if an employee were to file a sexual orientation discrimination charge with the EEOC there is a good chance that the EEOC would take up their cause. An employer served with such a charge can therefore expect to get mired in legal proceedings with the EEOC–and pay for the privilege via legal fees and either a settlement or potential verdict.
I have also offered my humble opinion that eventually either Congress will manage to pass the Employment Nondiscrimination Act (ENDA) — or some variant thereof–or there will be a US Supreme Court ruling addressing this very issue. Either way, it is clear that the tide has moved–and continues to move–toward protecting against discrimination based on sexual orientation and gender identity. Employers should therefore consider taking the following steps:
- Update payroll practices – Some state and local tax laws have already been amended to recognize same-sex marriages. Those that have not yet done so are expected to follow suit.
- Review benefit policies and practices.
- Review other policies that refer to marriage or spouses, such as bereavement leave, non-FMLA leave, and confidentiality policies.
OK that’s enough about Obergefell’s impact on employers — for now. Join us next week when we move on to an exciting new topic. See you then!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
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