Same Sex Marriage: What Employers Should Know
On June 26, 2015, the U.S. Supreme Court struck down state constitutional bans on same-sex marriage across the nation, ending years of national debate, activism, and litigation pertaining to the issue of marriage equality for same-sex couples.
This decision theoretically puts same-sex married couples on equal footing with opposite-sex married couples in a multitude of ways. I emphasize “theoretically” in that same-sex couples are bound to run into hurdles while the new law is fully implemented through all aspects of society, including the workplace.
Long before the Obergefell decision, many large corporations were sympathetic to same-sex couples and made domestic partnership benefits available to people who could not legally get married. Now that anyone may marry in any state, companies may eliminate domestic partnership benefits and require same-sex couples to get married just as opposite-sex couples would to be eligible for benefits.
Religious Freedom Issues
Opposition to same-sex marriage correlates most with freedom-of-religion rights and the fear that same-sex marriage violates and threatens individual religious freedom, which includes employers. While the latest legislation to enact a Religious Freedom Act failed to pass in Louisiana, Gov. Jindal issued an executive order to achieve the same results of the proposed bill. It is unlikely this order is truly enforceable, and the order is the subject of a pending lawsuit against the governor. This issue is more of a business owner/customer issue than employer/employee matter, though in light of the marriage ruling, business owners should be cautious when it comes to using religious views as a justification to discriminate, as that is a defense unlikely to hold up in court.
Social Security Benefits
There were disputes over Social Security benefits following the Defense of Marriage Act Supreme Court ruling in 2013. While the federal government began recognizing same-sex marriage, Social Security benefits for married couples were determined by the marriage rules in the state where a couple lived. So this meant that if a couple got married in New York but lived in Louisiana, they weren’t eligible for Social Security benefits. This is all now moot because all same-sex married couples nationwide are now eligible for Social Security benefits. These benefits include spousal survivor benefits, retirement benefits and lump-sum death benefits.
There are a number of issues that pertain to spousal health insurance benefits. Employers should offer these benefits to same-sex married couples if they are giving these benefits to straight couples since there is no difference between a same-sex spouse and opposite-sex spouse now. Technically there is no requirement for a self-insured company to offer same-sex spouse benefits; however, if an employer chooses to go this route, they are opening themselves up to potential lawsuits in the future. Religious objections won’t likely cut it either if the employer is offering benefits to straight couples.
Employees come from all walks of life and backgrounds and surely have different upbringings and backgrounds. Employers should do all they can to create a friendly work environment where everyone respects one another. Implementing policies through employee handbooks is a good way to educate and foster a work environment where all employees treat each other with respect and understand that families come in many different forms. This can help avoid potential issues of employees having issues with gay and lesbian co-workers, especially when they realize that they are truly no different than themselves.
Sexual Orientation is not a Protected Class
This issue is the next battle for LGBT equality. As it stands now, there is no protection under federal law nor Louisiana state law that keeps people from being fired from on the basis of sexual orientation. An employer can fire someone for being gay. So when an employee discloses to his or her employer that he is married to someone of the same sex for the purpose of employee benefits, he could be vulnerable to be fired, and there’s no legal remedy in Louisiana. There are efforts to push for legislation to include sexual orientation as a protected class, which already includes the categories of gender and race.
We are in the early stages of this new legal landscape where same-sex couples are finally afforded the same marriage rights as their opposite-sex counterparts. It is going to take some time to iron out all the issues, and there will continue to be legal hurdles and obstacles to face. The answers to many questions haven’t been fully developed yet, and there will certainly be more questions raised as society adjusts to same-sex marriage across the nation.
Ryan Delaney is a founding partner of Delaney & Robb Attorneys at Law. The firm was established in June 2013 and is the first law firm in Louisiana to openly focus on LGBT legal needs.