The Lawletter Vol 39 No 10
John Buckley, Senior Attorney, National Legal Research Group
A periodic review of employment policies for changes in the law is always prudent. In light of the rapidity of recent developments, however, including marriage rights of same-sex couples and prohibitions against discrimination based on sexual orientation and gender identity, counsel for employers face an unprecedented challenge keeping workplace policies compliant in a changing legal landscape.
Same-sex marriage rights. Recent legislative and judicial developments related to same-sex marriage rights impact workplace rights involving benefits, leave time, and related issues. An employee's same-sex spouse may be entitled to coverage under employer-provided health insurance plans and have rights as the alternate payee, beneficiary, and/or survivor in employee pensions and other retirement benefits. Upon divorce, an employee's spouse may recover an interest in the portion of the employee's pension or other retirement benefit that accrued during the marriage. Upon an employee's death, the surviving spouse may be entitled to receive any wages due the employee. Similarly, under federal and many state laws, an employee is entitled to paid or unpaid leave time to care for a spouse with a serious medical condition or a spouse who is a military servicemember or veteran. Thus, it is essential for employment policies to reflect the current legal definition of "spouse" under federal law and in the employer's particular state(s) of operation.
Currently, a majority of states plus the District of Columbia permit same-sex marriages or recognize such marriages legally performed elsewhere. Seventeen of these states and the District of Columbia legalized such marriages as a matter of state law, while the remainder have been ordered by the federal courts to permit such marriages under the federal Constitution. The U.S. government currently recognizes such marriages for federal purposes in all of these jurisdictions. United States v. Windsor, 133 S. Ct. 2675 (2013); U.S. Att'y Gen. Press Release No. 14-1181 (Oct. 25, 2014). Although the U.S. Supreme Court recently declined to accept appeals from three federal circuit court decisions striking down various state same-sex marriage bans, e.g., Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.) (invalidating Utah's ban), cert. denied, 135 S. Ct. 265 (2014), the Sixth Circuit Court of Appeals has just created a split of authority on the issue by upholding similar bans in four states—Kentucky, Michigan, Ohio, and Tennessee—against constitutional challenges, DeBoer v. Snyder, Nos. 14-1341 et al., 2014 WL 5748990 (6th Cir. Nov. 6, 2014). This "circuit split" increases the chances of the Supreme Court's accepting an appeal in the Sixth Circuit case or another same-sex marriage case in which a petition for review may still be filed. Thus, the existing federal decisions invalidating same-sex marriage bans could potentially be overruled.
Workplace Discrimination. In recent years, an increasing number of states have been amending their civil rights and fair employment practices statutes to prohibit discrimination on the basis of sexual orientation. Many of these states include gender identity or expression within the prohibition. Currently, 21 states and the District of Columbia prohibit such discrimination in both public and private employment.
Although Title VII of the federal Civil Rights Act of 1964 contains no prohibition of such discrimination, in July 2014 the President issued an executive order that requires most federal contractors to prohibit workplace discrimination on the basis of sexual orientation and gender identity. Exec. Order No. 13,672, 79 Fed. Reg. 42,971 (Jul. 21, 2014). This requirement applies to contracts entered into on or after the effective date of implementing regulations to be issued by the Office of Federal Contract Compliance Programs ("OFCCP"). On October 20, 2014, the OFCCP sent to the Office of Budget and Management its draft final rule to implement the new executive order. In the meantime, however, the OFCCP is adhering to its previously stated position that gender identity/transgender status is protected under the ban on sex discrimination of Executive Order No. 11,246. OFCCP Dir. 2014-02 (Aug. 19, 2014).
Conclusion. In light of these fast-breaking developments, counsel for employers would be well advised to conduct a thorough review of employment policies to ensure compliance, as well as to increase the frequency of periodic reviews.
Do your clients have appropriate and effective employment policies? National Legal Research Group, Inc., will provide a complimentary review and consultation regarding an existing employment policy, or an assessment to determine what policies are needed for your clients. To take advantage of this offer, you may contact us by email at jbuckley@nlrg.com or by phone at (800) 727-6574. You can also fax an existing policy to us at (434) 817-6570. You will receive a complimentary initial consultation with John F. Buckley IV, a nationally known author and authority on Human Resources and Employment Law.
