Q. Does the recent U.S. Supreme Court decision on same-sex marriages have any effect on us with regard to the Americans with Disabilities Act?
A. The Court’s decision in Obergefell v. Hodges does not directly impact any employee rights or employer responsibilities under the ADA. The ADA specifically excludes “homosexuality” and “bisexuality” from its definition of disability, as well as “transsexualism,” “transvestism,” and “gender identity disorders not resulting from physical impairments.” Even though lesbian, gay, and bisexual employees now have the right to marry in each state, and that right ostensibly is premised on their sexual orientation, Obergefell in no way expands the definition of who is considered “disabled” for purposes of the ADA. Legal challenges to the definition of a disability in the ADA, which some view as outdated, could possibly arise in the future, especially given the focus on equal protection in Obergefell.
Obergefell also does not appear to expand associational discrimination claims under the ADA, as no spousal relationship is necessary to show association with a disabled individual. For instance, if a gay employee’s same-sex spouse has cancer and the employee believes his employer takes adverse action against him due to his association with his spouse as a result of that disability, the fact that the employee is married seems unlikely to make any substantial difference in whether one is associated with a person with disability for purposes of the ADA.