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Review policies in wake of same-sex ruling

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in Centerpiece,Employment Law,Human Resources

The Supreme Court’s landmark decision legalizing same-sex marriage means HR departments must review company policies to root out all references to the gender of an employee’s spouse. For most employers, it should be an easy task—previous federal court decisions had already upheld same-sex marriage in all but 14 states.

The ruling affects all policies that involve employees’ spouses, including those concerning retirement benefits, health insurance, dependent care, the FMLA and other family leave. Now, all benefits must provide the same coverage to same-sex married couples as for heterosexual married couples.

The 5-4 decision in Obergefell v. Hodges, handed down June 26, found that the Constitution’s 14th Amendment guarantees same-sex couples a fundamental right to marry, and to have their marriages legally recognized in all states.

Plaintiffs in the 6th Circuit states of Kentucky, Michigan, Ohio and Tennessee challenged the constitutionality of those states’ bans on same-sex marriage, along with their refusal to recognize same-sex marriages performed in other states. They argued that the states’ laws violated the 14th Amendment clauses protecting due process and equal protection.

Advice: Search all policies and procedures for the terms “husband” and “wife.” Substitute “spouse.” Then reread to ensure the change effectively removed all references to the spouses’ genders. Train managers on the changes: When it comes to benefits that involve spouses, all married employees must be treated equally.

The Obergefell decision also affects the income tax and Social Security status of employees in same-sex marriages. Regardless of state law, they and their spouses now have the same rights (and responsibilities) as other married couples. Remind payroll staff.

Note: The Obergefell decision did nothing to change the fact that, for employment law purposes, sexual orientation and gender identity are not protected characteristics under federal law.

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