On June 26, 2015, the Supreme Court of the United States answered the two questions it posed in the consolidated same-sex case, Obergefell v. Hodges, No. 14-556 (June 26, 2015). The consolidated case arose from challenges to Michigan, Kentucky, Ohio, and Tennessee state laws that continued to ban same-sex marriages and those states’ refusal to recognize legally valid same-sex marriages performed in other states. The two questions before the Supreme Court were: (1) Does the U.S. Constitution, including the Equal Protection and Due Process clauses of the Fourteenth Amendment, require all states to perform same-sex marriages? (2) Does the U.S. Constitution require states to recognize same-sex marriages legally performed elsewhere?
In a 5-to-4 decision authored by Justice Kennedy (and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan), the Supreme Court answered both questions affirmatively, holding that the right to marry is a “fundamental right” and that all 50 states must license marriages between two people of the same sex and must recognize a same-sex marriage lawfully licensed and performed out-of-state. While some commentators predicted that the Obergefell decision would mirror the Court’s previous decision in United States v. Windsor, 570 U.S. ____ (2013), in which the Court struck down the federal Defense of Marriage Act’s definition of “marriage” as between one man and one woman, Obergefell’s holding is much broader. The Supreme Court stated that the right to marry is inherent to one’s personal liberty, and that the Due Process and Equal Protection clauses of the Fourteenth Amendment prohibit states from depriving same-sex couples of that right and liberty. The Court’s opinion explores multiple principles and traditions underlying its decision, including protecting the right to marry because it safeguards children and families and ensures personal autonomy.
As a result of this decision, employers should familiarize themselves with the impact of Obergefell from both an employment law and benefits perspective.
Your Employees May (Now?) Enter Into a Same-Sex Marriage in Any State
The obvious take-away from Obergefell is that all employees who are eligible to be married (e.g., they are not married already, they are of the age of consent, they meet the residency or application requirements, etc.) may now enter into same-sex marriages in their state of residence or any other state. Obergefell also means that all same-sex marriages that are valid where they were performed (referred to as the “place of celebration” rule) must now be recognized by all states. Nonetheless, employers should remain cognizant that employees may elect not to enter into a same-sex marriage even though they now have the right to do so in all states. Employees may choose not to do so for a variety of reasons.
While some state and local officials may be prepared to begin same-sex marriages immediately, employees may not be able to marry right away due to administrative hurdles. Some state and local officials announced just prior to the Court’s decision that they would not necessarily abide by the Court’s decision allowing same-sex marriages to proceed in all states without direction from their respective state governments to do so. For instance, at least one county clerk’s office in Texas that is responsible for issuing marriage licenses has stated it will wait for guidance from the Texas Attorney General before following any decision made by the Supreme Court ordering same-sex marriage to proceed.
Employers considering immediate policy revisions based on the fact that same-sex marriages are now legal in every state should proceed cautiously. For example, employers that are considering eliminating insurance coverage for same-sex unmarried domestic partners on the premise that such benefits are now unnecessary since all gay or lesbian employees can now marry, should consider waiting to make such a decision until Obergefell’s implications are fully understood and universally implemented. (We will cover the impact of Obergefell on employee benefits in further detail on the Ogletree Deakins’ blog shortly.)
Family and Medical Leave Act
Post-Windsor, the U.S. Department of Labor (DOL) promulgated a final rule (29 C.F.R. § 825.102) that modified the definition of “spouse” under the Family and Medical Leave Act (FMLA) 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 sought based on arguments that states define marriage and states are not required to recognize marriages performed in other states. Although it is unknown how the four states that pursued the injunction will proceed in light of the Supreme Court’s decision, Obergefell’s holding 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, so employers in those states that elect not to grant FMLA to same-sex spouses may be taking a risk by doing so.
Obergefell has no impact on FMLA leave taken for the serious health conditions of children of same-sex couples, whether married or unmarried. After Windsor, the DOL reaffirmed that eligible same-sex parents standing in loco parentis to children enjoyed protection under the FMLA.
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on sexual orientation or gender identity/expression. Obergefell is not an employment case and does not directly implicate Title VII in any way. Obergefell also does not serve to expand Title VII’s protected classes to now encompass sexual orientation or gender identity/expression. However, employers should remain acutely aware of all applicable laws on this topic. For example, gender stereotyping lesbian, gay, bisexual, and transgender (LGBT) individuals may give rise to a gender discrimination claim under Title VII. In addition, many state and local provisions with similar protections to those in Title VII include protections for LGBT individuals, as well as for gender identity and expression, in the employment context and otherwise. Likewise, some states and municipalities also prohibit discrimination based on marital status.
Although the Employment Non-Discrimination Act (ENDA), which in its current form would serve to extend protections to LGBT individuals in employment and other arenas, has languished for many years in the legislature, Obergefell may reignite interest in or support for ENDA. Likewise, given the equal protection and due process grounds relied upon in Obergefell, it seems possible that legal challenges could be pursued on these grounds to seek to encompass LGBT individuals under Title VII’s existing protections.
As a practical matter, employers should be on alert that today’s ruling may be discussed in the workplace as employees may have deeply held personal and religious beliefs in support of or contrary to the outcome in Obergefell. Employers should be prepared to address any workplace issues that arise as they would any other workplace discussion that may intersect with such personal and religious beliefs.
Americans with Disabilities Act
The Court’s decision does not directly impact any employee rights or employer responsibilities under the Americans with Disabilities Act (ADA). The ADA specifically excludes “homosexuality” and “bisexuality” from its definition of disability, as well as “transsexualism,” “transvestism,” and “gender identity disorders not resulting from physical impairments.” Even though lesbian, gay, and bisexual employees now have the right to marry in each state, and that right ostensibly is premised on their sexual orientation, Obergefell in no way expands the definition of who is considered “disabled” for purposes of the ADA. Legal challenges to the definition of a disability in the ADA, which some view as outdated, could possibly arise in the future, especially given the focus on equal protection in Obergefell.
Obergefell also does not appear to expand associational discrimination claims under the ADA as no spousal relationship is necessary to show association with a disabled individual. For instance, if a gay employee’s same-sex spouse has cancer and the employee believes his employer takes adverse action against him due to his association with his spouse as a result of that disability, the fact that the employee is married seems unlikely to make any substantial difference in whether one is associated with a person with disability for purposes of the ADA. See e.g. Saladin v. Turner, 936 F. Supp. 1571, 1581 (N.D. Okla. 1996) (employer liable for associational discrimination where employee was suspended because of his association with his male partner who had been diagnosed with AIDS).
Obergefell does not appear to have any immediate impact on federal contractors from an affirmative action compliance perspective. Executive orders and directives from the Office of Federal Contract Compliance Programs (OFCCP) already set forth federal contractors’ duties and obligations to LGBT employees, although the details and interpretations of those duties continue to emerge. Specifically, Executive Order 11246 prohibits federal contractors from discriminating in employment on the basis of race, color, religion, sex, national origin, and now sexual orientation and gender identity, and ensures equal opportunity for employees and applicants without regard to these characteristics. The OFCCP’s Final Rule issued in December of 2014, which is entitled “Implementation of Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors,” and its final guidelines anticipated in summer or fall 2015, provide federal contractors with guidance on adhering to amended Executive Order 11246’s expanded scope.
Employers should beware that since OFCCP can and will investigate sexual orientation discrimination complaints it receives from employees of federal contractors, there is some chance more complaints could be received since same-sex marriage necessarily arises out of or is directly related to sexual orientation.
Employers should not expect any substantive changes in the immigration context. Following the Supreme Court’s decision in Windsor, United States Citizenship and Immigration Services (USCIS) made clear that marriage for purposes of immigration is any valid marriage recognized where performed (e.g., the place of celebration rule). Because USCIS already gave full faith and credit to same-sex marriages regardless of one’s state of residence, Obergefell should not have a substantive impact for employers but may streamline the analysis and application of the law when working with same-sex employees and their spouses.