What's Work Got to Do With It? The U.S. Supreme Court's Review of State Same-Sex Marriage Bans May Affect Employers

It was announced on January 16th that the U.S. Supreme Court will hear arguments in four same-sex marriage cases in April, potentially settling the contentious issue by the end of the term. Specifically, the justices designated two questions for review. The first asks whether the Fourteenth Amendment, which contains the due process and equal protection clauses, requires states to license same-sex marriages. The second question asks whether the Fourteenth Amendment requires states to recognize same-sex marriages that were lawfully performed in other states. If the Court were to rule that states cannot prohibit same-sex marriage, the immediate impact on employers (e.g., an initial increase in tax and benefit administrative work, and a review and update of various leave/benefits policies) may be minimal. But, such a decision could have a significant long-term impact in the workplace to the extent that it implicates state and/or federal anti-discrimination laws. Currently, there is no federal anti-discrimination law that applies to sexual orientation, and many states (including Texas) also lack such laws. A proposed federal act called the Employment Non-Discrimination Act (ENDA), which would protect LGBT employees against employment-related discrimination, has been debated in Congress in one form or another for years. Although ENDA has yet to become law, a Supreme Court ruling striking down same-sex marriage bans could strengthen support for the legislation. It could also embolden plaintiffs’ attorneys to argue that the existing provisions of Title VII that prohibit sex discrimination also provide protection to LGBT employees (a position which the EEOC has recently expressed some support for). Whether ENDA ultimately can make it through Congress or the courts will be more receptive to such anti-discrimination arguments is a different story. Of course, we will keep you updated once the Court’s decision is issued as to specifically how the ruling may (or may not) affect the workplace. Stay tuned… -Micah Prude and Barbara-Ellen Gaffney, Thompson & Knight, LLP