Attorney Carolyn Davis reveals complications after Obergefell v. Hodges decision

By Carolyn Davis

What are the implications for employers when being the same is no longer the same? On June 26, 2015, the Supreme Court of the United States issued an important decision on same-sex marriage equality in Obergefell v. Hodges, which required states to license a marriage between two people of the same sex and to recognize same-sex marriages validly performed out of state. Prior to this decision, in 2013, the Supreme Court in US v. Windsor(June 26, 2013) held that thefederal governmentcould not refuse to recognize a valid same-sex marriage.These rulings have important implications for employers, who until now have been operating under a variety of state laws and uncertain guidance from government agencies.

Key employment take-aways from Obergefell and Windsor:

For employers in Ohio and other states that didnotrecognize same-sex marriage before June 26, 2015, the following changes are in effect:

Public employersmust recognize same-sex marriages and treat them the same as heterosexual marriages.

Forprivate employers, the full effect is not yet known, though prior 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 ofWindsor, 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."

What hasn'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.Obergefellis not an employment case and does not directly implicate discrimination laws in any way. It is important to note, however, that some courts and the Equal Employment Opportunity Commission have used a gender-stereotyping/sex discrimination analysis to find employers who have unlawfully discriminated. Additionally, some states and many municipalities have adopted laws prohibiting discrimination on the basis of sexual orientation or gender identity.

Still to come:

In spite of the Supreme Court decision, some counties across the United States have refused to issue same-sex marriage licenses. Further action will be needed by the courts and government to fully implement the Supreme Court's decision. Additional guidance is expected from the Internal Revenue Service and the Department of Labor regarding the transition and implementation of changes to employers in light of the Obergefell decision. Although the decision has provided employers some guidance on sexual orientation issues, more clarity is needed to navigate this ever-changing legal landscape.

Carolyn Davis is an attorney in Taft Stettinius & Hollister LLP's Labor and Employment group. She focuses her practice on matters involving employee hiring and termination, employment agreements, personnel policies, harassment, workplace investigations, ADA, FMLA, NLRA, EEOC and workers' compensation.