Thursday, July 2, 2015

What Will Employers Likely See (or Not See) in the Wake of the Supreme Court's Same-Sex Marriage Decision?

Now that the hubbub surrounding the Supreme Court’s June 26 decision in the consolidated case of Obergefell v. Hodges has begun to level off, employers are wondering how the decision will impact their workplaces.  (In case you were on vacation, deliberately not paying attention, or otherwise disengaged, the justices decided by a 5-to-4 margin that the right to marry is a “fundamental right” that is protected by the Constitution and that all 50 states must allow and recognize marriages between two people of the same sex.)  Here are some of the relatively immediate consequences of the decision that may affect employers: 

Employees Now May Enter into a Same-Sex Marriage in Every State

The most obvious result of Obergefell is that everyone who is otherwise eligible to be married may now enter into same-sex marriages in their state of residence or in any other state.  Also, all same-sex marriages that are valid where they were performed must now be recognized by all states.

That doesn’t mean, however, that same-sex couples who decide to rush off and get married at their local courthouse will necessarily be greeted with open arms.  There will be administrative hurdles to be worked out in some locales, and some state and local officials have announced that they will not abide by the Supreme Court’s decision until directed to do so by officials from their state government.  For instance, some county clerks in Texas have said that they will wait for guidance from the Texas Attorney General before issuing any same-sex marriage licenses, and that state’s attorney general has publicly denounced the Obergefell decision and said that public officials who do not want to issue licenses or perform marriage ceremonies for same-sex couples cannot be compelled to do so.

There are also legal storm clouds gathering around the issue of whether religious liberty might somehow dilute the Court’s same-sex marriage ruling.  The Texas Attorney General has already taken the position that county clerks and their employees have Constitutionally-protected religious freedoms that permit them to refuse to license or perform same-sex marriages.  Likewise, evangelical, Catholic, and Jewish organizations have made it clear that Obergefell is an impediment to the full exercise of religious expression guaranteed by the Constitution and is likely to generate additional litigation that ultimately will have to be resolved by the Supreme Court. 

So, for now, employers may continue to see strong and spirited debate in their workplaces.  These are still very much hot-button issues about which employees on both sides may be very passionate.  Employers may see bullying and other civility problems, and they should be prepared to address them just as they would any other workplace issue.  No one is entitled to violate workplace standards of behavior just because their cause happens to be one that is politically- or religiously-charged.

Family and Medical Leave Act

The U.S. Department of Labor previously issued a final rule that modified the definition of “spouse” under the Family and Medical Leave Act to include same-sex spouses whose marriages were valid in the state in which they were celebrated.  Four states obtained a preliminary injunction staying enforcement of the DOL’s final rule in Arkansas, Louisiana, Nebraska, and Texas.  The injunction was based on the proposition that states define marriage and states are not required to recognize marriages performed in other states.  We don’t yet know what will happen next in the four states that obtained the injunction.  Obergefell validates the DOL’s definition of “spouse,” and employers must afford FMLA rights to eligible employees in same sex-marriages, regardless of where the marriage was performed or where the employee resides.  The DOL has not yet issued any statement on enforcement in the four states that are part of the challenge to the definition.  Employers in those states that still choose not to grant FMLA leave to same-sex spouses are probably now taking a big risk.

Obergefell has no impact on FMLA leave taken for the serious health conditions of children of same-sex couples, whether married or unmarried.  The DOL previously reaffirmed that eligible same-sex parents standing in loco parentis to children are protected under the FMLA.

Title VII

Obergefell does not directly implicate Title VII because it was not an employment case, nor does it expand Title VII’s protected classes to include anyone who is not already protected.

Title VII does not prohibit discrimination based on sexual orientation or gender identity or expression.  However, employers should bear in mind that gender stereotyping, which is an issue that naturally arises from the Obergefell decision, can lead to discrimination claims under Title VII.  There also are state and local laws and ordinances that protect LGBTQ individuals, and others give similar protections for gender identity and expression.  And don’t forget that may states prohibit discrimination based on marital status.  All of those issues now rise to the surface for employers in light of Obergefell.  And who knows, Obergefell may even rekindle interest in the Employment Non-Discrimination Act, which is the perennial legislation aimed at giving employment protections to LGBT individuals, which never seems to get traction in Congress.

Americans with Disabilities Act

The Supreme Court’s decision does not directly impact any rights or obligations under the Americans with Disabilities Act.  The ADA expressly excludes “homosexuality” and “bisexuality” from the definition of disability, as well as “transsexualism,” “transvestism,” and “gender identity disorders not resulting from physical impairments.”  Even though same-sex employees now have the right to marry in each state, Obergefell based that right on their sexual orientation.  It clearly did not expand the definition of who is considered “disabled” for purposes of the ADA to include LGBTQ status.  Attempts to change the definition of “disabled” to include any aspect of LGBTQ status would almost certainly face stiff opposition from the LGBTQ community itself.

Nor does Obergefell apparently expand associational discrimination claims under the ADA, since no spousal relationship is necessary to show association with a disabled individual in the first place.  Associational claims have long been recognized for spouses, partners, and others, regardless of gender or marital status.

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