The Supreme Court’s Same-Sex Marriage Ruling and its Impact on Employers

Paula Lopez, July 6, 2015.

On Friday, June 26, 2015, the U.S. Supreme Court ruled in a 5-4 decision written by Justice Anthony Kennedy (and joined by Justices Ginsburg, Sotomayor, Kagan and Breyer) that the right to marry is a fundamental right protected by the Fourteenth Amendment. The Supreme Court’s decision in Obergefell et al. v. Hodges, et al. means that all states are required to license a marriage between couples of the same sex and to recognize out of state same-sex marriages.

The Supreme Court’s decision reversed a ruling from the Sixth Circuit Court of Appeals that upheld same-sex marriage bans in Michigan, Kentucky, Tennessee, and Ohio.  In deciding to hear the case, the Supreme Court limited its review to two issues: (i) whether the Fourteenth Amendment requires a state to license a marriage between two people of the same sex; and (ii) whether the Fourteenth Amendment requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

The consistency offered by the decision will help streamline the way multi-state employers administer their employee benefits by no longer having to keep track of which states have legalized same-sex marriages and where and when their employees’ marriages were performed.

The immediate impact of the Obergefell decision on employers will be seen through possible changes to offered spousal benefits and leave policies. For instance, employers may reconsider offering domestic partner benefits if they also offer spousal benefits since the Court’s ruling permits employees in all states to marry.  Nevertheless, employers who offer spousal benefits to opposite-sex spouses will now be required to extend those benefits to same-sex spouses.

In addition, employers considering leave requests under the Family Medical Leave Act in states that have refused to implement the Department of Labor’s final rule modifying the definition of marriage to include same-sex spouses whose marriages were valid in the state they were celebrated should tread carefully in light of the Obergefell decision. Arkansas, Louisiana, Nebraska and Texas had obtained an injunction staying enforcement of the DOL’s final rule.  The Obergefell ruling will likely result in lifting the injunction, which means that employers in these states will need to extend family leave rights to employees seeking leave to care for same-sex spouses.

While the Court’s decision did not discuss whether an individual’s sexual orientation is a protected characteristic or its impact on employment related discrimination claims, it did, in two instances, refer to sexual orientation as an “immutable” characteristic.  Recognizing sexual orientation as an “immutable” characteristic, similar to race and gender, could lay the ground work for future plaintiffs seeking to have courts apply a heightened scrutiny to claims of discrimination based on sexual orientation.

While the Employment Non-Discrimination Act (ENDA), which would extend employment discrimination protections to LGBT individuals, has lingered in Congress without success, the Obergefell decision could create traction in favor of proponents of the law.  Therefore, employers need to stay apprised of changes in federal, state and local anti-discrimination regulations which could be amended to provide for enhanced protections based on sexual orientation or gender identity. It is also important for employers to keep in mind that in states and localities that do not afford protections based on sexual orientation but do prohibit discrimination based on marital status, Obergefell could result in an increase in claims by employees in same-sex marriages who believe they have been discriminated against by their employer based on their marital status. In addition, employers may see an increase in agency enforcement actions as a result of the Court’s decision.

While the Supreme Court’s decision in Obergefell has finally resolved the issue of the constitutionality of same-sex marriage, significant uncertainty remains as to the total impact of the Court’s decision in the employment context and beyond. Employers should remain vigilant to changes in the laws and keep their policies updated.