By Phil Riske, managing editor | Rose Law Group Reporter
Supreme Court’s 6-3 decision upholding same-sex marriage (Obergefell v Hodges) will result in companies revisiting their domestic partnership benefits for unmarried couples, such as exists in Arizona, many state officials agree.
“Now that same-sex couples can marry in all states, those companies may consider removing that benefit altogether and only provide coverage for legal spouses, and not unmarried domestic partners,” said David Weissman, Rose Law Group employment and healthcare attorney.
Weisman said it should first be noted federal anti-discrimination laws currently do not protect against workplace discrimination based on sexual orientation and/or gender identity (except in the case of federal contractors). The same is true under Arizona state law, though several Arizona cities have ordinances protecting LGBT employees from discrimination.
“While Obergefell does not directly expand workplace rights under federal law, it very well may lead to a renewed effort for Congress to pass the proposed Employment Non-Discrimination Act, which would protect LGBT employees but has yet to pass,” Weissman said.
Phoenix, Tempe, Tucson and Flagstaff already offer discrimination protections to LGBT workers, tenants and contractors.
President Barack Obama issued an executive order that went into effect earlier this year prohibiting federal contractors from discriminating against LGBT workers and applicants.
It is also possible, Weissman said, a federal court could find there is a constitutional right to workplace protections for LGBT employees based on the Supreme Court’s reasoning in Obergefell.
The decision might also impact workplace leave policies under the Family and Medical Leave Act (FMLA).
The Department of Labor recently ruled a “spouse” under the FMLA is defined based on the law of the state where the marriage occurred.
Several states challenged that rule, arguing they should not have to recognize a same-sex marriage performed in another state and therefore should not be required to extend FMLA rights to permit time off to care for same-sex spouses.
“Given the Supreme Court’s ruling all states must permit and recognize same-sex marriages, same-sex spouses should now be afforded full FMLA rights in all states,” Weissman said. “In addition, employers may want to ensure other workplace policies thst address a ‘spouse’ include same-sex spouses, such as bereavement and nepotism policies, for example.”
Weissman said Obergefell might also have an impact on the administration of certain employee benefits, such as retirement plans, insurance coverage and payroll and tax issues.
Child Adoption
Rose Law Group Partner Kaine Fisher says considering possible effects on child adoption of the high court’s ruling is no surprise.
“Call me optimistic,” Fisher said. “In the adoption context, it really should be just an exercise of tying up loose ends and making sure the statutory language is consistent across different areas of the law.
He praised Gov. Doug Ducey’s decision last week to overrule a ban on adoption by same-sex couples.
“There are many loving and caring same-sex couples out there who can provide the children with a good home. This seems, at least to me, to be a much better alternative than a foster home,” Fischer said.
Maricopa County Board Supervisor Steve Gallardo, an LGBT rights advocate, welcomed the ruling and told Phoenix Business Journal he wants to move the fight to the workplace.
Reactions
“This is a major victory, a big step forward toward full equality. But the journey is not over,” Gallardo said. “Full equality can only be reached when we have banned all workforce discrimination based on sexual orientation, gender identity and sexual expression.”
Sen. John McCain disagreed with the ruling.
“I continue to believe that the institution of marriage is a union between a man and a woman, I have long believed that questions about the definition of marriage should be settled by the people and their elected representatives, not the federal courts,” McCain said.
