The reverberations are still being felt from the Supreme Court’s blockbuster June 26 decision to legalize gay marriage nationwide. The finding in Obergefell v. Hodges that state same-sex marriage bans violated the Constitution’s Equal Protection Clause left no doubt where the majority stood. So now that the dust has settled, what are the key takeaway points for employers?
1. Uniformity Rather Than a Hodge Podge
One chief impact of the Supreme Court’s ruling is that there will now be complete uniformity in the tax and employee benefits treatment of all married couples, regardless of gender combinations. That’s according to Anthony Oncidi, who heads the labor and employment law practice group at the Los Angeles office of Proskauer Rose.
Many employers will welcome this development as corporate giants like Apple, Coca-Cola and Wal-Mart were among the businesses that had urged the Supreme Court to recognize all same-sex marriages in a friend-of-the-court brief.
2. Employer Reaction and Popular Opinion
There is no question public opinion has shifted quite rapidly on this issue. A recent USA Today/Suffolk University poll showed that Americans by a 51% to 33% margin say local and state officials should let gay couples get married in their jurisdictions even if they oppose gay marriage. Meanwhile, a July Gallup poll shows that nearly six in 10 Americans (58%) believe gay marriages should be valid, up from just 27% in 1996.
Nonetheless, certain employers with deeply-held religious beliefs that oppose the Supreme Court’s ruling may opt to drop spousal benefits altogether rather than extend them to same-sex married couples. Oncidi says, “Also foreseeable is that some companies may cease offering benefits to domestic partners and, instead, limit benefits only to married couples.”
But in light of the above numbers, those employers that choose to go these routes do so at their peril and risk alienating a segment of their employees. Conversely, the availability of these benefits makes a company more likely to retain talented gay and lesbian workers.
3. A Bit of Mayhem?
In 28 states, it remains legal for private employers to discriminate against job applicants or employees based on their sexual orientation. Oncidi says that could create a rather incongruous situation. “In those states, employees may marry a same-sex partner on Sunday afternoon and lose their job for it on Monday morning with no legal recourse,” he explains.
Meanwhile, the job protection landscape is even murkier on the federal level, where there remains no nationwide protection for gay and lesbian employees. In 2013, the Senate passed the Employment Non-Discrimination Act (ENDA), which would have added sexual orientation and gender identity to the list of protected categories under federal civil rights law. However, the bill languished in the House of Representatives where it did not come up for a vote. And while the EEOC ruled last week that workplace discrimination based on sexual orientation is illegal, the agency’s pronouncements neither bind Congress nor have the force of law.
Still, Oncidi calls this a “non-issue for most large companies.” For instance, he asserts that many employers have long since incorporated sexual orientation into their antidiscrimination policies with many now offering gender identity protections as well.
Oncidi joined me recently on a recent XpertHR webinar not only to discuss the same-sex marriage ruling, but to weigh in on other recent Supreme Court decisions affecting the workplace. Share your thoughts on what you think the Court’s same-sex marriage opinion will mean for your employer by leaving a comment below or connecting with me on Twitter @DavidWeisenfeld.