By now, most Americans have heard that the U.S. Supreme Court has announced constitutional protections for same sex marriage. This means that same sex marriage is legal and protected in all fifty states. But, the resolution of the marriage issue raises a host of new issues. This article addresses just a handful of those issues. Part One addressed issues outside of employment law. This Part Two addresses some of the issues arising under employment law.
- · Employment discrimination based on sexual orientation: Are openly homosexual employees protected from employment discrimination? The Supreme Court’s decision does not address employment, and federal employment statutes do not currently include sexual orientation as a protected class. However, the Equal Employment Opportunity Commission is likely to take the position that existing protections against gender discrimination extend to sexual orientation in at least some situations, and it is possible that courts will agree. Legislation affirmatively protecting against discrimination on the basis of sexual orientation has been pending in Congress for some time. In addition, many states and large cities already have laws barring discrimination on the basis of sexual orientation.
- · Family and Medical Leave Act: The FMLA applies to companies with at least 50 employees. Employees of such companies are allowed to take up to 12 weeks a year of unpaid leave for their own medical treatment or that of a family member, or for pregnancy, child birth or adoption. Employees must be allowed to take time off in connection with their spouse’s medical treatment regardless of whether their spouse is the same sex or the opposite sex. The FMLA’s protections do not extend to unmarried couples, regardless of gender.
- · Employee Benefits: Company policies regarding family health insurance coverage, child care savings accounts, bereavement leave, 401k beneficiaries, etc. will need to be updated so that they apply equally to same sex spouses and opposite sex spouses. As many same-sex couples rush to marry in the wake of the Supreme Court’s ruling, employers should bear in mind that a marriage can be a triggering event allowing an employee to change his or her insurance plan mid-year.
- · Employee Handbooks: Handbooks should be updated to provide gender neutral language where reference is made to spouses, and to address the changes (discussed above) in how employee benefits should be handled.
This list is not intended to be all-inclusive. Many additional employment-related issues will come to light as employers and employees adjust to the Supreme Court’s decision.
The analysis set forth in this article is provided for general understanding only and should not be considered legal advice. Counsel should be consulted regarding any specific employment issues.