The case is OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL. and I’m sure the world knows it was a 5-4 ruling to legitimize gay marriage. It was a combo 14th/5th Amendment ruling (equal rights in state agencies on the 14th, due process in federal agencies on the 5th), and despite all else, I think it has three potential implications for the workplace.
The first is for medical benefits for spouses of employees. Prior to the ruling, it was legal to provide benefits for spouses of heterosexual employees, but not for spouses of same-sex married men or women. That now changes. Any employee who is married in a company that provides spousal benefits now must apply the same principle to same-sexed married couples.
That’s important, but the lesser of the two implications. The second issue I have is whether Kennedy’s majority ruling, since it was based on equal rights and due process, is applicable to workplace lawsuits based on gender preference, as for example, in same-sex harassers. In other words, will harassers who are not gay be able to legally victimize gay employees on grounds that the harassment is based on gender preference and not sex (or sexual desire) as some courts have interpreted based on Justice Scalia’s ruling in Oncale v. Sundowner (1998) [118 S. Ct. 998]. This remains to be seen… I wouldn’t bet against it though.
Third, gender preference discrimination in private companies is not covered under Title VII. However, I’m wondering if such a lawsuit, based on Title VII brought against private employers, won’t lead to a constitutional challenge and a similar ruling based on the gay marriage issues.
I’m totally sure on the first issue, somewhat convinced on the second issue, but not sure on the third issue. What do you think?
By Art Gutman, Ph.D., Professor, Florida Institute of Technology