What Obergefell v. Hodges means for Employers

Unless you’ve been living under a rock (and a sufficiently large rock, at that), you probably heard that on June 26th, the U.S. Supreme Court issued a little opinion called Obergefell v. Hodges.  While I would encourage anyone to read the full text (you’ll find terrific arguments on both sides), this landmark ruling – authored by Judge Kennedy –   determined that the Constitution guarantees a fundamental right for same-sex couples to marry.  Issued two years to the day of United States v. Windsor (2013) – which itself struck down a portion of the Defense of Marriage Act (DOMA) – Obergefell also determined that states must now recognize the validity of same-sex marriages entered into in other states.

So if you’re an employer, what does this mean for you?  Well – not too much . . . just yet.  After Windsor held Section III of DOMA to be unconstitutional, President Obama ordered the federal government to revise any federal statutes to comport with the Windsor decision.  As a result, the FMLA definition of “spouse” was altered to include same-sex couples who were married in states that permitted same-sex marriage.  That revision took place in February of this year (hey – no one said the feds move fast . . . ).

Accordingly, even before Obergefell, employers in Alabama were still obligated to provide FMLA leave to an employee who needed to care for his gravely ill same sex partner.

However, more changes are coming.  And probably coming fast.  Look for numerous requests to start pouring in for medical benefits for same-sex spouses.  And keep an eye out for the next big step – the State of Ohio adding in language to R.C. 4112 to make discrimination due to someone’s sexual orientation illegal.

For now – watch out for shop talk about the decision.  Whatever side of the aisle your employees happen to be on, make sure no one is getting loud and offensive with their opinions in the company break room.  As always, allowing offensive behavior to permeate unchecked is what can get you in hot water.

Luke Lindberg