On June 26, 2015, the United States Supreme Court issued a landmark decision in Obergefell v. Hodges, holding that states can no longer ban same-sex marriages. The Court’s decision will have wide-reaching impacts on many areas of law, including employment law. Now that same-sex marriages are legal everywhere, employers will need to review their practices to make sure that their benefits, leave, and other policies are in line with the new rules.
The first big victory for marriage equality came in 2013, with the U.S. Supreme Court’s decision in United States v. Windsor. In that case, the Supreme Court struck down a portion of the federal Defense of Marriage Act (DOMA), which defined marriage as between one man and one woman. The Court held that, for purposes of issuing federal benefits and other entitlements, the federal government must recognize same-sex marriages that were legally entered into under state law.
The Obergefell case went one-step further, holding that same-sex marriages must be allowed in all 50 states. The Supreme Court held that, under the Fourteenth Amendment, individuals have a fundamental right to marry the person of their choosing. To deny marriage to same-sex couples would deprive them of a fundamental right under the Constitution.
At the time of the Court’s decision, the following states did not permit same-sex marriages: Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee, and Texas. These states will now have to issue marriage licenses to same-sex couples and recognize same-sex marriages that were performed out of state. (For more details on the decision, see Same-Sex Marriage Now the Law of the Land.)
Like the Windsor decision, the Obergefell decision will mostly impact employment laws that provide rights or benefits to the spouses of employees.
The federal Family and Medical Leave Act (FMLA) requires employers with 50 or more employees to provide eligible employees with unpaid time off for various reasons, including to care for a spouse with a serious health condition.
After DOMA was struck down, it was clear that the definition of “spouse” under the FMLA should include same-sex spouses. But, what if an employee was legally married in one state, but worked in a state that didn’t permit same-sex marriages? Would those employers have to provide FMLA leave to care for a same-sex spouse, even though the marriage wouldn’t have been allowed in their state?
The Department of Labor (DOL), the federal agency that enforces the FMLA, ultimately dealt with this issue by holding that employees could take FMLA leave as long as the marriage was legal in the state where it was entered into. (For more information, see New FMLA Regulations Move to a “Place of Celebration” Rule for Same-Sex Spouses.)
A handful of states, including Texas and Louisiana, filed legal challenges to this rule, arguing that the federal government couldn’t force them to recognize same-sex marriages that were entered into in other states. However, now that same-sex marriages must be allowed in all states, the legal ground for these challenges has all but disappeared.
Employers in all states that are subject to the FMLA should now provide leave to employees to care for a same-sex spouse, regardless of where the employee lives or the marriage took place. The same should hold true for any state laws that provide leave rights, such as state family and medical leave laws and military spouse leave laws.
Employers that choose to provide leave rights beyond what the law requires may also want revisit their leave policies. While this issue was not directly addressed by the Court’s ruling, employers can expect challenges to any policies that provide leave rights to opposite-sex employees only. For example, an employee may challenge a sick leave policy that provides paid time off to care for an opposite-sex spouse, but not a same-sex spouse.
Federal and state laws that provide benefits to the “spouses” of employees should also include same-sex spouses in that definition. Under the federal Consolidated Omnibus Budget Reconciliation Act (COBRA), employers with 20 or more employees are required to provide employees with the option of continuing health care coverage after leaving a job. Employees may also elect to continue coverage for certain family members, including spouses.
With same-sex marriage now legal everywhere, employees in all states should be entitled to continue health care coverage for same-sex spouses under COBRA, no matter where the marriage took place. The same goes for state laws that govern employee benefits, such as state COBRA laws.
The Obergefell decision does not dramatically alter federal and state antidiscrimination laws. Most notably, it doesn’t give employees the right to be free from discrimination on the basis of sexual orientation. However, it will likely affect states that have outlawed discrimination based on marital status.
Title VII, the primary federal antidiscrimination law, prohibits employers with 15 or more employees from discriminating on the basis of certain protected characteristics. Sexual orientation is not, however, a protected class under Title VII.
Over the years, federal courts have partially recognized the rights of gay and lesbian employees by allowing them to bring discrimination cases on the basis of “sex,” which is a protected class under Title VII. In these cases, a gay or lesbian employee alleges that he or she was discriminated against for not living up to gender stereotypes. For example, a gay employee who was treated negatively for being too “effeminate” may sue for sex discrimination. However, courts have been quick to point out that these cases are limited in scope and don’t provide a blanket right to be free from sexual orientation discrimination. The Obergefell decision does not change these rules.
Many employees are protected from sexual orientation discrimination under state or local laws, though. Over 20 states, and several cities, have passed laws to protect employees from discrimination on the basis of sexual orientation.
Title VII does not protect employees from discrimination based on marital status. However, several states have included marital status as a protected class in their antidiscrimination laws.
Based on the reasoning of Obergefell, the definition of “marital status” should now include marriages between same-sex spouses. In other words, employers in these states would not be allowed to treat employees differently because they have entered into same-sex marriages.
It remains to be seen just how big of an impact the Supreme Court’s decision will have on workplace rules. However, it does provide fertile ground for legal challenges, especially when it comes to the impact on discrimination laws and employer-provided benefits. For example, employees may bring challenges to Title VII, asking courts to declare once and for all that discrimination on the basis of “sex” includes sexual orientation discrimination.
Because this is still an emerging area of law, employers should consult with an employment lawyer before changing workplace policies that impact the spouses or domestic partners of employees.