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For better or worse? Key employer takeaways from the same-sex marriage ruling

Nonnie Shivers on the fallout from Obergefell v. Hodges

Some of your employees and their allies may still be celebrating the fundamental right to marry same-sex spouses in the wake of the U.S. Supreme Court’s decision in Obergefell v. Hodges. Even before the White House lit up in rainbow colors, some employers joined their employees and the LGBT community in celebrating the Supreme Court’s decision, including American Airlines’ tweet displaying rainbows across every headrest screen with the caption “[d]iversity strengthens us all.” Regardless of personal or spiritual beliefs on the issue of same-sex marriage (which, by the way, is now simply marriage), employers are asking -- what do we need to know and do in light of the Obergefell decision? While the dust has not settled and challenges and reactive measures to Obergefell are already in the pipeline, such as various county clerks refusing to issue marriage licenses to same-sex couples, myriad takeaways exist.

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FURTHER READING:

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Out at work: An employer’s primer on LGBT employee protections

Employers need to respond to ruling in same-gender marriage decision 

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Obergefell’s most obvious takeaway for employers is that all employees who are eligible to be married may now enter into same-sex marriages in their state of residence or any other state, including the 13 states that previously banned same-sex marriage. Obergefell also means that all same-sex marriages that are valid where they were performed (referred to as the “place of celebration” rule) must now be recognized by all states. These take-aways make employers’ duties easier since a universal rule now applies, whether in benefits or leave administration. Since the devil is in the details, however, the following rundown of Obergefell’s implications by discrete areas of employment law may be helpful to employers that strive for compliance but may still want to stay out of their employees’ personal lives: 

 

  • Employee benefits: Obergefell brings greater clarity for employers in administering benefit plans. State insurance laws may require carriers to offer same-sex spouses coverage and benefits offered to opposite-sex spouses. Self-funded plans not subject to state insurance laws but subject to non-discrimination laws may be required to cover same-sex spouses if the plan covers opposite sex-spouses. Fringe benefits offered to spouses, such as discounts, should likely encompass “spouses” as that term is now defined.
  • Leave laws: Obergefell’s holding essentially validates the Department of Labor’s recently amended definition of “spouse,” meaning employers must afford Family and Medical Leave Act (FMLA) rights to eligible employees in same sex-marriages, regardless of where the marriage was performed or where the employee resides. State leave laws must be analyzed on a case-by-case basis. Policies affording rights based on spouses, such as bereavement policies, may need to be amended to avoid disparate treatment discrimination claims.

 

  • Anti-discrimination laws: Obergefell was not an employment case and does noy explicitly expand Title VII’s protected classes to now encompass sexual orientation or gender identity/expression, although sex discrimination and gender stereotyping claims are viable causes of action. Employers should remain acutely aware of all applicable laws on this topic and the possible expansion of Title VII through legislative or court rulings given the finding of a fundamental right. Many state and local provisions with similar protections to those in Title VII do include protections for LGBT individuals, as well as for gender identity and expression. Likewise, some states and municipalities also prohibit discrimination based on marital status. Although the Employment Nondiscrimination Act (ENDA), which in its current form would serve to extend protections to LGBT individuals in employment and other arenas, has languished for many years in the legislature, Obergefell may reignite interest in or support for ENDA. Likewise, given the equal protection and due process grounds relied upon in Obergefell, it seems possible that legal challenges might be pursued on these grounds to seek to encompass LGBT individuals under Title VII’s existing protections. As an immediate issue, employers should be on alert that today’s ruling may be discussed in the workplace as employees may have deeply held personal and religious beliefs in support of or contrary to the outcome in Obergefell. Employers should be prepared to address any workplace issues that arise as they would any other workplace discussion that may intersect with such personal and religious beliefs.
  • Americans with Disabilities Act: Obergefell alsodoes not directly impact any employee rights or employer responsibilities under the Americans with Disabilities Act (ADA), which excludes “homosexuality” and “bisexuality” from its definition of disability, as well as “transsexualism,” “transvestism,” and “gender identity disorders not resulting from physical impairments.” Obergefell also does not appear to expand associational discrimination claims under the ADA as no spousal relationship is necessary to show association with a disabled individual. 
  • Affirmative action: Amended Executive Order 11246 already prohibits federal contractors from discriminating in employment on the basis of sexual orientation and gender identity, and Obergefell appears to have no direct impact. Employers should beware that since Office of Federal Contract Compliance Programs (OFCCP) can and will investigate sexual orientation discrimination complaints it receives from employees of federal contractors, there is some chance more complaints could be received since same-sex marriage necessarily arises out of or is directly related to sexual orientation. 
  • Immigration: Obergefell has no substantive impact in the immigration context. Because the United States Citizenship and Immigration Services (USCIS) already gave full faith and credit to same-sex marriages regardless of one’s state of residence after the Windsor decision, Obergefell may streamline the analysis and application of the law when working with same-sex employees and their spouses.

While Obergefell is definitive, it has left some organizations, legislators, and individuals to consider the next steps – in particular religiously-affiliated organizations that oppose same-sex marriage and are concerned about their tax-exempt status being stripped or facing other penalties. Employers should keep an eye on developments that may impact them as Obergefell will certainly be challenged as the dust settles.   

Contributing Author

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Nonnie Shivers

Nonnie Shivers is a shareholder in the Phoenix office of Ogletree Deakins, an international labor and employment law firm representing management. http://www.ogletreedeakins.com/people/nonnie-l-shivers

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