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Same-sex marriage ruling brings in new legal issues

Plus new emphasis on discrimination

Though it applies only to states where same-sex marriage is legal, the recent Supreme Court ruling on gay marriage warrants attention from managers in all states.

For those in Washington, DC, and the 13 states where gay marriage is recognized, there are new employment law requirements.

For those in all the other states, the ruling calls for increased emphasis on nondiscrimination.

A matter of two rulings

In a nutshell, the decision, which came down June 26, says that in states where same-sex marriage is recognized, gay couples who are legally married are entitled to the same federal benefits as opposite-sex married couples.

There were actually two decisions, each of which was decided by a 5-to-4 vote.

The first invalidated DOMA, or the Defense of Marriage Act, which had said that federal law only recognized heterosexual marriage and that one state could refuse to recognize gay marriage legally performed in another state.

The second decision ousted an attempt to reinstate Proposition 8, a constitutional amendment in California (later ruled unconstitutional) that had banned same-sex marriage. That decision was made on technical grounds – the case was not properly presented to the court.

The court did not say same-sex marriage is valid, explains MICHAEL CALDWELL, an employment and labor law attorney with DeLong, Caldwell, Bridgers & Fitzpatrick in Atlanta. It left it up to the states to determine that.

What is did say is that if a state recognizes a marriage, the federal government does too. And federal benefits extend to all legally married people.

Thus, the marital benefits now available to same sex couples include health insurance, retirement benefits, and Social Security survivor benefits.

What’s more, gay couples can now make medical decisions on behalf of a partner and take sick leave to care for a partner.

They can change their tax filing status from single to married filing jointly.

A surviving spouse can take a spousal rollover in an IRA and delay the distributions until after age 70. Previously same-sex spouses were treated as general beneficiaries and had to take the distributions immediately and pay tax on them.

More still, the tax exemptions available to a surviving spouse are now available to the survivor in asame-sex marriage.

The FMLA changes too

The decision “will also change some important things related to employee rights,” Caldwell says.

In states where gay marriage is legal, “employers have to extend all the benefits to gay couples that they extend to heterosexual couples.”

And that includes leave under the FMLA. Offices in the areas touched by the ruling now have to allow same-sex married employees up to 12 weeks’ leave to care for their spouses.

He recommends that managers in those areas send employees a notice that the benefits provided by federal law have been extended to same-sex couples, but only if they have a legally recognized marriage.

Tell them the leave policies and medical insurance are being adjusted so that all married couples, same sex or heterosexual, have the same benefits.

Gender, not sexual orientation

That doesn’t give a free pass to states that don’t recognize gay marriage.

While Title VII of the Civil Rights Act does not protect against discrimination based on sexual orientation, it does protect against discrimination based on gender.

And included there is discrimination based on stereotypes – and heterosexual marriage is a stereotype. Thus, if employees are treated differently because they don’t conform to the stereotype of heterosexual marriage, “that’s discrimination.”

Caldwell cites one case where a feminine-acting man who worked in a manual labor job was harassed by the other men because of his demeanor. He sued for discrimination and won “because he was treated differently based on the stereotype of how genders should act.”

In another case, a professional office wanted to help its women employees advance and so adopted a mentor program for them. One woman’s mentor told her that to succeed she needed to show more deference to the male coworkers, act less aggressively, and wear more feminine clothes.

She did not advance and sued for sexual discrimination, the evidence being that she didn’t conform to the gender stereotype the company had of women.

That same reasoning well applies to an employer’s attitude toward gay people, he says. When there is evidence that a decision is made because of gender or racial stereotype, “there’s evidence of unlawful discrimination.”

How the states stand on same-sex marriage

Currently, there are 13 states plus the District of Columbia where same-sex marriage is legal. Offices in these areas now have to extend marital benefits to gay couples.

They are:

California
Connecticut
Delaware
District of Columbia
Iowa
Maine
Maryland
Massachusetts
Minnesota
New Hampshire
New York
Rhode Island
Vermont
Washington

Of the other states, 35 have adopted constitutional amendments or state laws banning gay marriage. They are Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin and Wyoming.

The remaining two – New Jersey and New Mexico– have no laws banning or allowing same-sex marriage.

Discrimination is discrimination

“In terms of discrimination, the ruling really doesn’t change anything,” he says. It simply affirms “that every human being has inherent dignity that has to be respected.” And no employer can discriminate against someone because of sexual orientation.

He also points out that employers’ religious beliefs do not affect the enforcement of the new ruling. “It doesn’t matter what their religious views are on this.” They have to comply.

Watch out for risky talk

A final point of concern for managers in all states is derogatory conversations about the new ruling, Caldwell says.

Tell people that negative and unkind remarks about same-sex marriage “are off-limits for talk.”

Conversations of that sort “can create a sexually hostile working environment” – and a law suit.

He recommends sending out a memo emphasizing that conversations about the issue must be respectful. That reinforces the office’s position that it will not tolerate harassment of any sort.

He gives this sample:

It is a fundamental principal of our practice that every individual who works with or for us has inherent dignity that is worthy of and demands the respect of others. That dignity is not affected by sexual orientation.

The Supreme Court recently ruled that same sex marriage partners are entitled to the same benefits that heterosexual marriage partners enjoy.

That decision will likely become a topic of conversation. While we do not censor speech, we do require that employees treat the office and the people in it respectfully. We will not tolerate statements that belittle individuals or harm their sense of self esteem.

Discussions that descend into debates, name calling, or other offensive behavior ignore our rule of respect. Moreover, if they distract employees from their jobs, they hurt our productivity.

Every person’s sexuality is a private matter. We ask our employees to maintain the privacy of their own sexuality, whether gay or straight.

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