The U.S. Supreme Court has issued two recent decisions on same-sex marriage:
- Obergefell v. Hodges (June 26, 2015) held that states may not refuse to recognize a lawful same-sex marriage performed in another state; states may not distinguish between “marriage” and “same-sex marriage.”
- U.S. v. Windsor(June 26, 2013) held that the federal government could not refuse to recognize a valid same-sex marriage.
If you are an employer in a state that recognized same-sex marriage before June 26, 2015, there is no change for you.
If you are an employer in a state that did not recognize same-sex marriage before June 26, 2015, the following changes are in effect:
- Public employers must recognize same-sex marriages and treat them the same as heterosexual marriages.
- For private employers, the full effect is not yet known, though guidance from agencies such as the Internal Revenue Service and the Department of Labor relating to retirement or other benefit plans, published in the wake of Windsor, must now be followed in all states. With respect to plans mandated by law or covered by federal or state regulation, employers should review and update policies and benefit plan documents, payroll information and administrative procedures to ensure that same-sex marriage is recognized. Private employers should consult with benefit carriers to determine how the carrier will handle the changed definition of “spouse.”
Following are items that haven't – or may not have – changed for employers:
- There is no impact on protected classes/workplace discrimination laws. Currently, federal law does not prohibit discrimination on the basis of sexual orientation or gender identity in private employment, although federal government contractors are prohibited from discriminating on those bases. Some courts and the Equal Employment Opportunity Commission, however, have used a gender-stereotyping/sex discrimination analysis to find that employers have unlawfully discriminated. Additionally, some states and many municipalities have adopted laws prohibiting discrimination on the basis of sexual orientation or gender identity.
- It is unknown what effect Obergefell and Windsor may have on private-employer benefits that are not mandated by law and are not covered by any government regulation.