March 21, 2023

Volume XIII, Number 80


March 20, 2023

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Supreme Court’s Marriage Decision Should Prompt Employers’ Review of All Employment Policies

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. … Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” Obergefell v. Hodges, 576 U.S. ___ (June 26, 2015).

By now, most employers are aware of the Supreme Court’s ruling granting same-sex couples nationwide the constitutional right to marry. The 5-4 decision written by Justice Kennedy strikes down same-sex marriage bans in 13 states and mandates that all 50 states must recognize same-sex unions.

Employers, especially in states that previously denied same-sex couples the right to marry, should review their benefits programs, handbooks and employment policies and practices to ensure they treat all married couples in the same manner.

Key issues for employers to consider include:

  • Family Medical Leave: Employers should allow employees in same-sex marriages protected time off under the federal Family and Medical Leave Act of 1993 (FMLA), even if the couple was married in a jurisdiction (or “place of celebration” under the recently revised FMLA regulations) that did not previously recognize same-sex marriage.
  • Health Insurance & Benefit Plans: Employers should generally review health insurance and other benefits programs and forms to be sure they are inclusive of same-sex spouses. Employers with self-insured plans should consult their benefits attorney to determine if their plan is exempt from such requirements, and keep an eye on the horizon for litigation in this area.
  • Discretionary Benefits: Employers should ensure discretionary benefits such as bereavement leave, relocation benefits, education benefits, employee discounts, and so forth are provided for all spouses.
  • Marital Status Discrimination: Employers subject to state laws and local ordinances prohibiting marital status discrimination are advised to ensure that related policies and practices afford those protections to all constitutional marriages.
  • General Employment Policies: Employers should update policies and forms to use inclusive language such as “spouse” as opposed to “husband” or “wife.”

But what about domestic partnerships? The Supreme Court’s decision does not impact an employer’s domestic partnership policies, and employers may continue granting benefits under such policies. However, with marriage equality, some employers may choose to discontinue inclusion of domestic partnerships and instead opt to treat all married and non-married individuals the same. 

What lies ahead? 

In recent years, versions of the Employment Non-Discrimination Act (ENDA) prohibiting sexual orientation discrimination have been introduced through the federal legislature, but ENDA has not garnered enough support to pass. While some states have enacted their own prohibitions against sexual orientation discrimination, at least 29 states currently do not have such laws. In 32 states, there is no law protecting transgender people from discrimination on the job. At the same time, some state agencies have already taken the position certain employees (e.g., county clerks and justices of the peace) should be entitled to accommodations if asked to perform job duties related to same-sex marriages where it conflicts with their beliefs. Employers should anticipate legislative developments addressing LGBT discrimination in the workplace.

© 2023 Wilson ElserNational Law Review, Volume V, Number 182

About this Author

Dean Rocco, Employment Attorney, Wilson Elser Law FIrm

Dean Rocco is co-chair of Wilson Elser’s national Employment & Labor practice. He represents employers of all types and sizes across the country as well as executives and members of management. He advises clients on issues such as managing employees with disabilities and medical leave rights, building sound personnel policies and complying with workplace regulations. Dean maintains a significant practice defending employers from lawsuits alleging workplace harassment, denials of disability or medical leave rights, unlawful termination of employment, and wage and hour...