07/15/2015

The United States Supreme Court Decision on Same-Sex Marriage: Impact for Employers

By Rachel Parisi of Ledbetter, Parisi, Sollars

The Ruling

On June 26, 2015, the United States Supreme Court issued a landmark decision when it ruled that the U.S. Constitution requires that all states must permit marriage between same-sex couples and that all states must recognize marriages lawfully performed in other states, including marriages between same-sex couples.[1] The decision was a close one, with the Justices ruling 5-4. The primary basis of the decision was the majority’s ruling that marriage is a fundamental right that is protected by the Constitution and cannot be denied because both partners are of the same-sex. At the time of the ruling, 14 states had bans in place against same-sex marriage.

Impact on Employers

What should employers be doing as a result of the decision in Obergefell? Make sure your policies treat same-sex and different-sex married couples the same. Your company may have leave policies, non-discrimination policies or spousal benefits that need to be modified to ensure that equal treatment is afforded to same-sex married couples. This is especially true for employers based in one of the 14 states that banned same-sex marriage pre-Obergefell (including Ohio). For larger employers with an in-house human resources department, ensure your staff is aware that the same enrollment and verification processes are to be used for all married individuals. In other words, a married same-sex employee cannot be required to provide “extra” verification of a valid marriage if the same steps are not taken for all employees.

For those participating in multiemployer benefit plans, your fund counsel has likely already taken care of the changes needed for your plans after an earlier Supreme Court decision in 2013 regarding same-sex marriages (the Windsor decision). In particular, tax-qualified retirement plans must recognize same-sex marriages for purposes of spousal rights. While it is not clear whether same-sex marriages must be recognized for rights that are not legally mandated, such as self-funded health plan coverage, it would seem that there is a near-certain risk of discrimination litigation by not offering such coverage in the wake of Windsor and Obergefell. Your plan’s benefit office will also likely be updating its enrollment and other forms to ensure that same-sex married couples are correctly identified and represented.

When in doubt, always check with your attorney on how to ensure that your company is in compliance and take care of both its business and employees.         

[1] Obergefell v. Hodges, 576 U.S. ___ (2015).