13799015_sEarlier today, the United States Supreme Court in its decision in Obergefell v. Hodges rendered same-sex marriage as the law of the land in all 50 states.  This blog is not about the wisdom or reasoning of the decision (for analysis on that you can check out, well, basically anywhere else on the web).  But regardless of your feelings, all employers must make very minor modifications to their policies to ensure that they are in compliance with what is now unquestionably federal law.

Most tellingly, the definition of “spouse” now must be modified in states that previously did not recognize same-sex unions.  If you consult your employee handbook you will likely find the word in numerous places under such topics as medical leave, conflict of interest, and equal opportunity (many jurisdictions, including my home state of New Jersey, recognize marital status as a protected classification in employment discrimination laws).  We recommend that all handbooks be updated periodically to allow for new developments in the law that can render your policies outdated.

Finally, remember that any discussion of the case and its significant ramifications should be limited in the workplace.  We’ve talked before about how even well-intentioned discussion of current events can give rise to a claim of discrimination.  Be mindful of the impact of these types of discussions on LGBT employees and their straight allies.

 

3324553_sIf half of my Facebook feed is correct, then the Justices are definitely going to rule in favor of gay marriage.  If the other half of my Facebook feed is correct, then the Justices are going to punt and claim it is a states’ rights issue.

There is not a lot of point in trying to guess which way they are going to go simply by what questions were asked at oral argument.  I can tell you from experience that I have been at motions before judges and was convinced that I was going to win based on how hard the judge was hammering my adversary, only to be disappointed when the decision did not go my client’s way.

Rather than try to dissect the oral argument and look for hidden clues as to how the Justices may rule, for anyone who is interested, you can listen to the argument on the first question here: http://www.supremecourt.gov/oral_arguments/audio/2014/14-556-q1 and on the second question here:  http://www.supremecourt.gov/oral_arguments/audio/2014/14-556-q2

For those people who may have been living under a rock or enjoying an extended Tom Hanks-like vacation on a desert island a la Cast Away, the Supreme Court is set to hear argument in four petitions that challenge state laws in the 6th Circuit banning gay marriage.  It is widely anticipated that the Justices will finally squarely confront whether banning gay marriage violates the Equal Protection Clause.

17951947_sThe road to the Supreme Court was paved largely by US v Windsor, which struck down the Defense of Marriage Act as a violation of the Fifth Amendment.  The decision opened the door for many  courts to strike down gay marriage bans. However, states promoting the bans have argued that the Windsor decision makes clear that it is up to states to decide what is a valid marriage and those states could choose to define marriage as only being between a man and a woman.  Adding to the confusion is the fact that several states, in an effort to get around the Full Faith and Credit Clause which generally requires states to recognize the legal actions of other states, passed constitutional amendments defining marriage as being only between a man and a woman.  A “my constitution trumps yours” argument.

Without a decision based on the Equal Protection Clause, it is likely that there will remain conflicts over the issue.  As of today, there are still 13 states in the U.S. where gay marriage is illegal.  One of the states where it is legal, Alabama, has become a bit of a constitutional battle ground with a federal court declaring the ban on gay marriage illegal and the state’s Supreme Court issuing an order prohibiting clerks from issuing marriage licenses to same-sex couples.

It is widely anticipated that the Supreme Court’s decision will be in favor of gay marriage.  Although the plaintiffs in the case are taking no chances and have pulled out the big legal guns.  Lawyers for gay and lesbian plaintiffs have chosen Mary Bonauto, the movement’s pioneer, to argue the case.

Employers should be aware that if the decision is in favor of gay marriage, it may have an immediate impact on policies and benefits.  For example, under the FMLA, a spouse would be defined as including same-sex spouses.  The Supreme Court’s decision is not expected until June.  We will let you know as soon as it is decided.

19425076_sThis morning I was prepared to draft a post reminding you that as of today the new DOL rule regarding same-sex spouses would go into effect.  Under the old FMLA rule, a spouse was defined as someone lawfully married in the state in which the employee resides.  This rule meant that even with the striking down of the Defense of Marriage Act, a same-sex couple who were lawfully married but lived in a state where same-sex marriage was not recognized, would not be spouses for purposes of the FMLA.

The Department of Labor issued a new “place of celebration” rule that would mean that as long as a couple were lawfully married in a state or foreign country where same-sex marriage was legal, then they would still be spouses for purposes of FMLA even if they resided in a state that did not recognize same-sex marriage.

In an action filed by the Texas Attorney General, a federal court judge has enjoined the application of the rule insofar as it would require employers in those states where same-sex was not legal to choose between violating federal or state law.

So, for now, employers will still need to follow the “place of residence” rule when determining whether a same-sex spouse is a spouse for FMLA purposes.

USA Today is reporting that the Supreme Court has announced that it will hear four cases that address bans on same-sex marriage.  (See Order granting Certiorari on same-sex marriage cases). 29050292_s The cases will be consolidated into one case and argument is scheduled for April.  It is expected that a decision will be issued before the Court’s term ends in June.

The Supreme Court sidestepped similar challenges even after the landmark US v. Windsor decision which foreshadowed the several circuit decisions that found that same-sex marriage bans violated the Equal Protection Clause.  There is currently a split in the circuits when the 6th Circuit upheld Michigan, Ohio, Kentucky and Tennessee’s laws banning same-sex marriage.  It is widely anticipated that the decision issued by the Supreme Court will not be a “punt” and instead will decide the issue once and for all.

We’ll keep you posted.

13799015_sFlorida has become the latest state to recognize gay marriage.  Same-sex marriages have started after the judge who recently struck down Florida’s gay marriage ban clarified that his order applied to all  couples, not just the plaintiffs in the lawsuit.  As we noted when US v Windsor  invalidated the Defense of Marriage Act, employers would need to review FMLA policies and benefit policies, including healthcare plan documents and handbook provisions that may define spouse.

The dominoes have really been falling on state laws banning same-sex marriage as same-sex marriage is now legal in 36 of the 50 states.  We understand that it may be difficult to keep up, but thought it might be easier to give you a list of states where same-sex marriage is not legal since that list is shorter.

The states still prohibiting same-sex marriage are:

  • Alabama
  • Arkansas
  • Georgia
  • Kentucky
  • Louisiana
  • Michigan
  • Mississippi
  • Missouri
  • Nebraska
  • North Dakota
  • Ohio
  • South Dakota
  • Tennessee
  • Texas

For those of you in the other 36 states here’s another friendly nudge to review your policies

A newly filed EEOC charge alleges that The Holy Family Catholic Community in Inverness, Ill fired its 17-year music director when the director announced on Facebook that he had just become an engaged to his male partner.  This, according to the Portland Press Herald.

See: http://www.pressherald.com/2014/12/06/music-director-fired-by-church-files-claim-for-discrimination/

gay weddings : Closeup of a gay couple holding hands, wearing a wedding ring. Couple is a hispanic man and a caucasian man.

The director, who alleges sex, sexual orientation and marital status discrimination, stated that he was told that “his same-sex relationship violated the tenets of the Roman Catholic Church.”

The Archdiocese of Chicago declined comment.

An Earlier Case

This case is strikingly similar to one we wrote about last February.

The Boston Globe and Boston.com reported what then may have been a legal first – a case filed with the Massachusetts Commission Against Discrimination (MCAD) against a religiously affiliated college prep school by a gay man who claimed that his offer of employment was withdrawn after the school discovered that he listed a “husband” as his emergency contact.

The applicant was offered a job as food services director, but claimed that a school official said that “the Catholic religion doesn’t recognize same-sex marriage, and that was her excuse.  She said, ‘We cannot hire you.’  If I’m planning and making meals for students, I’m not sure what my being gay has to do with the job. All I did was fill out the form honestly.”

He alleged sex and sexual orientation discrimination.

His attorney said that “There is a balance between important values, which are religious liberties, and discriminatory practices. This is a job that has nothing to do with religion . . . and this weighs toward discrimination.  Religiously affiliated entities do not have a free pass to do as they please in how they treat employees, particularly when it comes to our important laws against discrimination.”

The Ministerial Exception

Both cases involve what is called the “ministerial exception.”

On January 11, 2012, we reported about a significant First Amendment religious freedom decision involving the “ministerial exception” which was decided that day by the Supreme Court, Hosanna-Tabor Church v. Equal Employment Opportunity Commission.

The Court had before it a teacher in a religious institution who taught both secular subjects and a class in religion. When she threatened to file a charge of disability when a new teacher was hired to replace her, she was fired for insubordination. Her case involved a head-to-head confrontation between First Amendment religious freedom and the anti-discrimination employment laws.

At issue before the Court was the definition of “minister,” because” the “ministerial exception” holds, in effect, that the government should not get involved in internal church affairs involving “ministers,” and therefore courts should not become embroiled in lawsuits involving “ministers.”

The unanimous Court held that the religious institution must be free to choose its own ministers without state involvement: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” but “so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.”

Non-Ministerial Duties

In a post in June 2013, we reported that the Roman Catholic Archdiocese of Cincinnati fired a non-Catholic computer teacher in a parochial school allegedly for violating an employment contract requiring her “to conform with Catholic doctrine, which considers pregnancy out of wedlock through artificial means ‘gravely immoral.’”

Did the ministerial exception apply to her and thus permit her firing?

Plaintiff was a female non-Catholic, gay, unmarried parochial school computer teacher. She claimed that she was fired for being pregnant and unmarried.  Prior to trial, the archdiocese lost a motion based upon the recognized “ministerial exception,” since although Plaintiff was a non-Catholic (and thus did not conform to “Catholic doctrine”) she taught only computer classes (and not, for example, religion classes) and was even barred under church rules from teaching religion to her elementary school students.

Therefore, since she did not have ministerial duties in teaching computer classes, the exception did not apply, and a federal jury in Ohio agreed with her and awarded her $171,000 in damages and back pay.

The anti-discrimination laws trumped religious considerations in that case.

With respect to the Massachusetts case in early 2014, a Boston lawyer, Nancy Shilepsky, was quoted as saying that “Our Supreme Judicial Court takes a serious look at issues involving religious liberty and at issues involving discrimination.  They are careful to try to strike the appropriate balance.”

Takeaway

“Balance” and “accommodation” are always key in analyzing religious discrimination cases, or cases where religious practices are involved.

 

A new YouGov/Huffington Post survey on employment discrimination against homosexuals has some interesting statistics.  The most startling is that by a 62% to 14% margin, the American public believes that it is currently illegal to fire an employee for being gay or lesbian.  Other results are below, without comment.

Wanna see the results broken down by age, gender, party identification, race, region and income? These stats can be found here. 13225132_s

Would you favor or oppose a law prohibiting job discrimination by employers against gays and lesbians?

Strongly favor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33%
Somewhat favor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..17%
Somewhat oppose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ….16%
Strongly oppose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..22%
Not sure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12%

Do you think it should be legal or illegal for an employer to fire someone for being gay or lesbian?

Legal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12%
Illegal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76%
Not sure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12%

To the best of your knowledge, would you say it is currently legal or illegal under federal law to fire someone for being gay or lesbian?

Legal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14%
Illegal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62%
Not sure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25%

 

 

With our post yesterday on what we feel will be the growth of cases involving religion and the “ministerial exception,” we received an insightful question from Joanne Albertsen, a NYC attorney:

“Really interesting series of cases. I wonder if we’ll see more of these cases arise for employees of religious orgs as the status of same sex couples in particular becomes more solidified with certain states and the federal government (at least to some extent) recognizing same sex unions. I could also imagine this area of law intersecting with the Affordable Care Act if certain religious organizations are required to provide insurance for procedures or medications they find objectionable (this is still undecided, I believe). Thanks for posting!”

Joanne, I think you are right.  With the conflict over the Affordable Care Act, and gender orientation and same sex couple issues before so many courts, it is inevitable given the stew that is American politics and culture that religion and the religious exemption will come into play, and the “ministerial exception” will be front and center.   Look forward to it.

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In a very surprising move, Governor Christie announced today that his administration was abandoning its appeal of Garden State Equality v. Dow, which required New Jersey to start performing same-sex marriages on today’s date. 

The question had remained how long that would last as the Christie Administration launched a swift appeal.  It was certainly possible that New Jersey found itself in California’s shoes if the ruling was later overturned and couples who had managed to get married before the decision would have rights that other gay couples did not have.  In short, causing a bit of a quagmire.

Seeing the political writing on the wall, Governor Christie has conceded defeat.  Apparently, the New Jersey Supreme Court’s rather stinging decision on Friday denying a stay of the ruling and telegraphing its position on the equal rights argument contributed to this decision.  Interesting to us is what will happen with all of the New Jersey citizens who had entered civil unions because same-sex marriage was not an option.  That may be cause for further litigation down the road.

In the meantime, employers should examine policies regarding employees’ spouses to insure that same-sex spouses are included in the definition of spouse.

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