Author: David B. Weisenfeld

Overshadowed by President Obama's re-election and some hotly-contested Senate races were several notable state ballot measures affecting HR.

Affirmative Action

Oklahoma voters approved an election day measure to end all affirmative action programs in state government hiring, education and contracting practices.

This constitutional amendment passed despite objections that the Sooner State already bans racial or gender quotas in state government. In addition to banning preferential treatment based on race, color or gender, the amendment applies to preferred treatment based on ethnicity or national origin. SQ 759 does exempt affirmative action programs that are needed to obtain federal funding.

Gay Marriage

For the first time in the nation's history, three states approved ballot measures approving gay marriage. Voters in Maryland, Maine and Washington all narrowly approved laws legalizing same-sex marriage in their states. Meanwhile, Minnesota voters rejected a proposal to place a ban on gay marriage in the state constitution.

Six other states have previously enacted laws to allow gay marriage, but none of these resulted from a popular vote. These six states are:

  • New York;
  • Connecticut;
  • Massachusetts;
  • New Hampshire;
  • Vermont; and
  • Iowa.

From an HR standpoint, the ballot measures were worth watching because their momentum could spur another attempt in Congress to pass the Employment Nondiscrimination Act to protect gays and transgender individuals from workplace discrimination.

The Supreme Court could wade into the issue soon as it is being asked later this month to hear a case involving the federal Defense of Marriage Act (DOMA) that defines marriage as a legal union between one man and one woman.

Medical Marijuana

Massachusetts became the 18th state to legalize medical marijuana as voters there overwhelmingly approved a ballot measure on the issue. The law eliminates civil and criminal penalties for the use of marijuana by people with cancer, Parkinson's Disease, Hepatitis C, AIDS and other conditions determined by a doctor.

However, HR should be aware that the courts in states where medical marijuana is legal generally have held that despite such laws, having one's name on a medical marijuana state registry does not justify failing an employer's drug test.

Two other states, Colorado and Washington, became the first to pass measures legalizing marijuana use for recreational purposes without any medicinal use. This could set the stage for a showdown with the federal government.

Collective Bargaining

Michigan voters rejected a first-of-its-kind initiative that would have guaranteed employee collective bargaining rights in the state constitution. The ballot measure failed by a 58 percent to 42 percent margin. A complete recap of what voters in other states had to say on labor relations issues affecting can be found in another election update.

Additional Resources

What Obama's Win Means for Labor and Employment Law

Supreme Affirmative Action Battle is Big Deal for Employers

Employee Management > EEO - Affirmative Action: Oklahoma