On June 26, 2015, the Supreme Court decided in a 5-4 decision that same-sex couples nationwide have a constitutional right to marry.
The full case opinion (Obergefell v. Hodges) is available here, however, the majority opinion was best summed up by Justice Kennedy as follows:
The right to marry is a fundamental right inherent in the liberty of the person. Couples of the same sex may not be deprived of that right and that liberty.
These words wipe out Michigan’s 2004 law that limited marriage to heterosexual couples, as well as other gay marriage restrictions in force in a dozen other states. This also means all 50 states must recognize same-sex marriages. For an insightful summary of the opinion, see Lyle Denniston, Opinion analysis: Marriage now open to same-sex couples, which appears at SCOTUSblog (Jun. 26, 2015).
The Impact of the same-sex marriage ruling on employers.
Setting aside your particular view of this decision, this decision will require the immediate attention of employers, as well as an understanding by employees as to what protections they have and may not have in the workplace.
First, Michigan law does not generally provide workplace protections against discrimination based on sexual preference. In fact, approximately 28 states don’t have laws prohibiting discrimination against lesbian, gay, bisexual and transgender people. This means individuals in those states who are fired because of sexual orientation generally don’t have any recourse – a fact largely unchanged by the Obergefell v. Hodges decision.
However, Michigan recognizes marital status as a protected classification under its primary employment discrimination law, Michigan’s Elliott-Larsen Civil Rights Act (ELCRA). Specifically, this law prohibits discrimination based on an individual’s marital status. Conversely, the federal counterpart to Michigan’s ELCRA, Title VII, has no parallel provision.
Accordingly, employers need to carefully evaluate adverse employment actions against employees in a same sex-marriages to ensure such action does not violate the ELCRA.
Also, Michigan’s ELCRA may be applied to workplace discrimination claims involving same-sex married couples remain to be seen. For instance, in past cases, Michigan courts have made the distinction in applying ELCRA’s prohibitions against marital discrimination based on policies that differentiate on whether a person is married. In other words, the focus in a marital status discrimination claim under the ELCRA is whether discrimination occurred based on if one is married, rather than to whom one is married. Could an employer argue an adverse employment decision against an employee in a same-sex marriage was independent of marital status and, instead, was based only on the employer’s beliefs concerning homosexuality – whether in a same-sex marriage or not?
Conservative groups have been bracing for the ruling for months—developing legal strategies to carve out religious exemptions and ramping up fundraising to pay for them. Those groups said they expect to continue to fight for religious exemptions from legal mandates to accept same-sex marriage in courts, at the federal level, and state by state.
Whether money and legal strategies translate into legislation that diminish workplace protections for same-sex married couples is uncertain even if the resolve to see it happens is not.
In contrast, Justin Nelson, Co-Founder and President of the National Gay and Lesbian Chamber of Commerce (NGLCC) noted:
While recognizing this as a victory, NGLCC and its 42 affiliate chambers across the country understand that the LGBT movement must harness this momentum to secure greater equality, especially nondiscrimination protections for LGBT Americans. It’s unacceptable that hardworking LGBT business owners still be discriminated against in corporate and government supply chains and that LGBT people can still be fired from their jobs in 28 states, evicted from their homes, or denied service in restaurants and shops simply for being who they are.
Second, employers will need to address benefit issues to make sure the policies comply with the same-sex marriage ruling. Case in point: Rick Pluta of NPR recently reported that a Kroger employee has filed a Michigan employment discrimination complaint against it and the employee’s union because a jointly run health benefits fund refused to accept the employee’s same-sex spouse after the two were legally married last year. This marriage occurred during the brief window when it was legal in Michigan for same sex couples to marry.
Third, employers will need to review their employee manuals and make necessary modifications to their policies to ensure that they are in compliance with this ruling. For example, many employee handbooks treatment of “spouse” under such topics as medical leave, conflict of interest, and equal opportunity, anti-retaliation should be carefully reviewed.
Fourth, many companies prior to the Supreme Court ruling offered benefits to same-sex couples as domestic partners. However, with the Supreme Court ruling eliminating the barriers same-sex couples faced in getting married, employees should expect that domestic partnership benefits may be eliminated for unmarried same-sex couples.
For more information about Michigan employment law, as well as responding to changes created by this historical same-sex marriage ruling, contact attorney Jason Shinn. Since 2001, Mr. Shinn has worked with employers to respond to every day and significant employment law challenges facing their businesses.