In June the U.S. Supreme Court ruled in a 5-4 decision that the equal protection guarantee provided by the Fourteenth Amendment to opposite-sex marriages extends to same-sex marriages. The opinion in Obergefell v. Hodges, authored by Justice Anthony Kennedy, holds that “same-sex couples may exercise the fundamental right to marry in all States” and that there is “no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”
While the Supreme Court’s opinion goes on at length about the dignity inherent in the ability to marry the partner of one’s choosing, the court avoids determining whether lesbian/gay/bisexual (LGB) Americans are a protected class, or what level of scrutiny courts should apply when evaluating laws that seek to differentiate based on sexual orientation. This lack of clarity will no doubt figure prominently in subsequent litigation involving the many other laws that continue to single out LGB citizens.
So what happens now? Apart from the obvious outcome that LGB folks will be able to marry a partner of the same sex in all 50 states (though reports are already surfacing of public officials refusing to perform same-sex marriages or issue licenses to same-sex couples), this decision has immediate implications in a number of arenas, including employment. More specifically, the Obergefell decision will impact how employers administer benefits to employees, how they comply with federal and state requirements for leave, and it opens up questions as to how employers may treat LGB workers in states where it is still legal to discriminate against employees based on sexual orientation.
The decision will primarily impact employers when it comes to benefits administration and mandatory leave laws (state and federal). There will undoubtedly be more issues that arise as states adopt new laws that conform to the court’s ruling, so this discussion is in no way a complete picture of how Obergefell will affect employers.
Much of what employers are mandated to provide to employees, such as rights under the Family and Medical Leave Act (FMLA), will likely change to include same-sex couples. Although the U.S. Department of Labor changed the federal definition of “spouse” for FMLA purposes last March, employers must verify that they are granting all eligible employees in same-sex marriages their FMLA rights. It remains true that employers may provide more generous leave to employees than is required by the FMLA.
The Obergefell decision means that employers must permit eligible employees to take FMLA leave to care for their same-sex spouse with a serious health condition. It also makes married same-sex partners eligible for exigency leave if the spouse is being deployed in the military, along with other qualifying reasons under the statute.
In order to ensure compliance with the FMLA for same-sex married couples, employers should update all FMLA policies and forms to include same-sex couples and train supervisors and human resources administrators on the new rule. Employers should also determine whether any additional state leave laws apply, as they may differ on their definitions of same-sex marriage, civil unions and domestic partnerships, and may offer different leave rights depending on the protected category. Employers should be mindful that the Department of Labor’s new rule covers individuals who enter into a same-sex marriage only—the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation.
For employers that operate in multiple states, especially if some of those states already allowed same-sex marriage, the Obergefell decision could be an administrative relief. Because Obergefell applies to all 50 states, employers may adopt one common policy regarding same-sex partner benefits that will now be applicable in all states, which was not possible prior to this decision.
For those employers operating in states where same-sex marriages were already legal, Obergefell does little to change how benefits are administered. Employers who already offered benefits to same-sex married couples should continue to do so. For those employers who operate in states where same-sex marriage was not already legal and who currently offer benefits to opposite-sex married couples, they should begin including same-sex couples immediately to avoid any possible liability under any applicable state anti-discrimination laws.
Lastly, employers who elected to provide benefits for domestic partners or civil unions, but also offered benefits for opposite-sex married couples, should re-evaluate their policies to determine whether they want to maintain both married and partnership benefits (which likely apply to non-married heterosexual couples, too). Alternatively, they may wish to streamline benefits to apply only to those couples that are legally married, but not partnered or in civil unions.
As with any change in the law, employers will need to update their employee handbooks to reflect and extend the rights given to same-sex spouses to minimize litigation risks. Employers must also revise internal benefits enrollment processes, including updating its consent and eligibility forms, to ensure that they comply with the new law.
Future Challenges for Employers and LGB Employees
Although Obergefell may have unified the law when it comes to whether same-sex couples may marry, and how states must treat marriages from other states, it leaves many more questions unanswered. In addition to failing to articulate a standard of review for challenges to laws that differentiate based on sexual orientation (Rational basis? With bite? Intermediate scrutiny? None of the above?), Obergefell begs the question of how same-sex marriage rights will spill into other contexts. Consider the following hypothetical:
Jess is a lesbian who lives in Texas, one of the 29 states where private employers may openly discriminate against LGB employees and applicants because there are no federal or state protections for sexual orientation in the employment context. Jess is a pastry chef and has just recently started working for a family-owned bakery that specializes in wedding cakes. The bakery is owned by a conservative Christian family that is outspoken about not supporting same-sex marriage based on their religion.
Jess has a long-term partner that she has concealed from her bosses, out of fear that she may be fired because she’s a lesbian. She and her partner would like to marry. If Jess and her partner do get married, she will have to update tax documents with her employer, as well as her benefits information, effectively outing herself to her bosses and putting her job at risk. Even if her boss does not fire her, Jess is still at risk of harassment. How will courts resolve this tension, where taking advantage of the benefit of being married might actually increase a person’s exposure to mistreatment?
What if Jess elects to have her wife covered on the company health plan? Can her bosses refuse to provide her and her wife coverage based on a religious exemption, which the Supreme Court similarly upheld in Burwell v. Hobby Lobby in 2014? Could Jess’s employer deny her prenatal healthcare coverage if they object to her carrying a child as a lesbian parent?
The potential conflicts are many, and there is no guidance in Obergefell about how to reconcile the court’s notion that LGB people are entitled to the same liberties as heterosexual people, while also leaving the option for states to discriminate on their own. Claims of transgender, sexual orientation and/or gender discrimination may increase as gender identity and expression continue to be a topic of discussion. Likewise, discrimination based on marital status may give rise to lawsuits in certain states under state anti-discrimination laws.
Other Potential Issues Post-Obergefell
Hypothetical struggles do not end with how Jess’ employer will treat her after she marries her partner. Texas is also one of 33 states that do not prohibit property owners from discriminating against her based on her orientation or gender identity. If Jess and her wife jointly apply for a new apartment as a married couple, their sexual orientation is out front for any discriminating property owner to see.
In addition to discrepancies among the states with regard to protection for LGB employees and tenants, there will be battles over parental rights, adoption statutes and religious freedom objections for those who wish to refuse services to same-sex couples because of their faith. In short, Obergefell leaves unsolved many future issues that will likely take years to settle. Stay tuned as they unfold.