Legalization of Same-Sex Marriage Nationwide May Have Implications for Employers

On June 26, 2015, the Supreme Court held in Obergefell, et al. v. Hodges, et al., that the due process and equal protection clauses of the United States Constitution guarantee the right of same-sex couples to marry. The 5-4 decision authored by Justice Anthony Kennedy directs that all states must issue marriage licenses to same-sex couples and that states must recognize same-sex marriages lawfully licensed and performed out-of-state. The landmark decision comes almost twelve years after Massachusetts became the first state in the nation to recognize same-sex marriages.

Although Obergefell strictly speaking did not address any employment-related issues, the decision may have practical consequences for employers, particularly those doing business in jurisdictions that previously have not recognized same-sex marriage.

Family and Medical Leave Act

In March 2015, the Department of Labor modified the Family and Medical Leave Act (“FMLA”) to include same-sex spouses within the Act’s definition of “spouse.” Employers should be mindful of the need to grant all available FMLA rights to eligible employees engaged in same-sex marriages.

Employee Benefit Plans

Employers that offer employee retirement, insurance, or other benefit plans should be advised that the benefits provided to the “spouse” of a participating employee must be provided equally to same-sex spouses as they are to opposite-sex couples.

Equal Employment Opportunity

The anti-employment discrimination laws of some states and municipalities include marital status as a protected class. With the ruling that same-sex marriages must be accorded all of the rights and privileges of opposite-sex marriages, these laws now will apply in full force to protect employees married to a same-sex partner.

Other Employment Policies

Employers should consider revising employee handbooks and other written policies to make it clear that policies pertaining to employee spouses apply equally to same-sex marriages.


The bottom line is that employers must treat all valid marriages, whether opposite-sex or same-sex, the same in all respects.



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