If you’ve read the news recently, you know that on October 6, the United States Supreme Court declined to hear appeals involving gay marriage bans in Indiana and several other states. This move allowed several lower court decisions to stand, including those holding that Indiana must recognize gay marriages. Within the past few weeks, county clerks across Indiana began granting marriage licenses to same-sex couples. As of mid-October 2014, at least 30 states recognize gay marriages, and the trends suggest court decisions will increase that number in the next few months. Also, we now know the United States Supreme Court is unlikely to address the issue in the next year.
You will have to look elsewhere for guidance on what that means socially, politically, religiously, or philosophically. But legally speaking, we can offer a few observations.
The main thing to understand is that the definition of has expanded. This means Indiana employers need to be aware of how they administer their benefits. You may need to think more broadly about beneficiary designations for participants in your retirement plan. If you have a funeral leave policy that gives workers time off for the death of a parent-in-law, it may apply to more employees than in the past. The same goes for health insurance, family medical leave, family military leave, and any number of other benefits. The basic benefits and administration of them should not change much, but because many are tied to legally recognized families, you should be aware some employees might qualify for benefits that were previously unavailable to them.
Although this direct effect on employment practices may be small, the recent court activity on gay marriage is likely to have some indirect effects as well. There is no current federal or Indiana law prohibiting employment discrimination based on sexual orientation, but that does not mean employers are free to discriminate. First of all, some cities (such as the City of South Bend) have enacted ordinances making sexual orientation discrimination unlawful. Second, just as gay marriage has moved through the courts more quickly than the legislatures, the same could be true in the discrimination arena. The federal Equal Employment Opportunity Commission has stated publicly that one of its priorities is emerging and developing areas of the law, which it views as including lesbian, gay, bisexual, or transgender coverage under traditional sex discrimination laws. With increased attention on gay marriage, employers should expect related issues of employment discrimination will continue to be an emerging and developing area of the law.
It is not easy to predict what legal rules may emerge. Courts, lawmakers, and citizens are likely to grapple with gay marriage and related civil rights issues including issues of religious liberty for many future years. Until the law is more fully developed, precise rules do not exist. But in the meantime, the best practice for Indiana employers is what your handbooks probably say already: Do your best to treat all employees and job applicants equally.
Disclaimer: The THK Legal Blogs are for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon investigation of specific facts. You should consult an attorney for advice regarding your individual situation.