Last week, in Whitewood v. Wolf, Judge John E. Jones III of the Middle District of Pennsylvania held that Pennsylvania’s Marriage Laws, which define “marriage” as a civil contract between one man and one woman, are unconstitutional. What’s more, the Governor issued a press release the following day stating that his Administration would not appeal Judge Jones’ decision.
Whitewood made Pennsylvania the 19th state to legally recognize same-sex marriage, and the last state to do so in the Northeast. Movement toward this kind of recognition across the county is not slowing.
Judge Jones’ ruling significantly impacts Pennsylvania-based employers and employers with operations in Pennsylvania. The most immediate effect is that the ruling effectively expands application of the Family Medical Leave Act (“FMLA”). The FMLA guarantees employees up to 12 weeks of job-protected leave to care for a spouse with a serious health condition. Department of Labor guidelines state that a “spouse” can include a spouse in a same-sex marriage if recognized under state law in the state where the employee resides. Previously, employees residing in Pennsylvania were not entitled to job-protected leave to care for a same-sex spouse under the FMLA. After Whitewood, they are.
Pennsylvania employers should review their current employment policies and practices and make sure they are consistent with the new direction of Pennsylvania law. Employers should pay particular attention to leave-related employment policies and practices, and should update FMLA and related leave policies. Employers may also want to consider expanding the definition of “spouse” with respect to other types of leave as well, such as bereavement and maternity/paternity leave.
Finally, forward-thinking employers may want to get a jump on Pennsylvania’s new direction by reviewing employment policies and practices related to discrimination. Commentators predict that Whitewood signals eventual expansion of the Pennsylvania Human Relations Act (PHRA). Currently, like Title VII, the PHRA does not recognize sexual orientation as a protected characteristic. (In contrast, twenty-one other states and the District of Columbia include sexual orientation as an expressly protected class.) As one commentator put it, “if the state’s equal employment opportunity regulations are arguably inconsistent with its marriage laws, it’s not hard to envision a time when the state may consider a move to introduce legislation to align the bodies of law.”