Two months ago, the Supreme Court’s landmark ruling in Obergefell v. Hodges recognized that same-sex couples may exercise the fundamental right to marry in all 50 states. Employers are now turning to the difficult task of considering how Obergefell impacts their existing policies and procedures.
To be clear, Obergefell did not specifically address the workplace or employment discrimination. But, in making it clear that same-gendered citizens may legally marry, the Supreme Court’s decision affects how employers interact with an employee based on who his or her spouse is. Leaders in Human Resources therefore face a number of implications from Obergefell :
One set of rules for married spouses. Whether in benefits or the administration of leave policies, once policies are revised to account for same-sex spouses, employers should be able to utilize one set of rules for married spouses without having to differentiate between marriages and civil unions or between spouses and domestic partners.
Anti-discrimination policies. While Title VII does not explicitly prohibit employment discrimination based on sexual orientation, private employers should expect LGBT employees to seek to expand workplace protections by relying on Obergefell. As the national debate about gender identity, sexual orientation, and sex discrimination in the workplace intensifies, consider re-familiarizing yourself with your company’s antidiscrimination policy. This area is sure to be a must-watch litigation “hot spot” in the coming years.
Laws concerning employee leave. Employers must provide Family and Medical Leave Act (FMLA) rights to eligible employees with spouses in same-sex marriages just as in opposite-sex marriages. Employers may also want to review other employer-specific policies that concern spouses, including bereavement policies, to make sure those policies provide that same equal treatment.
Benefits. While Obergefell did not speak to employee benefits issues, in 2013 the IRS and the Treasury Department ruled that legally married same-sex couples were to be treated as married for all federal tax purposes. The federal Center for Medicare and Medicaid Services has issued guidance that group health policies must offer the same coverage to same-sex spouses as to opposite-sex spouses. Obergefell at its most basic level means that there will be more legally married same-sex spouses, which expands the impact of these rules. Employers should update other fringe benefit policies (e.g., discounts, tuition reimbursements, housing benefits, childcare allowances) that involve spouses. Finally, employers should consider whether they plan to continue domestic partner benefits now that there is no legal barrier to domestic partners becoming married spouses.
TIP: Many employers will need to revise their company’s handbook and employee policies to keep pace with the changing legal landscape for employees with same-sex spouses. Best practices for addressing marriage equality in the workplace are emerging and now is the time to audit and update company documents.
Efforts to make policies and procedures current may prove time-consuming for Human Resources in the near-term. Paperwork could temporarily spike as LGBT employees change tax withholdings, emergency contacts, and beneficiary designations for insurance policies. In concert with their attorneys, managers, and plan administrators, though, HR professionals can help address the changing legal landscape, protect against risks, and make the workplace more inclusive to all employees.