Over recent decades a number of cities and states have enacted gay rights laws that include protections against employment discrimination (most recently in Utah), but no federal law establishes such protection nationwide. However, that hasn’t stopped federal agencies from issuing a steady stream of edicts providing gay employees with an ever-widening array of protections.
A good example is the U.S. Department of Labor rule changing the definition of "spouse" in the Family and Medical Leave Act (FMLA) to include most same-sex married couples. DOL proposed the change last year after the Supreme Court overturned the Defense of Marriage Act, which previously defined marriage under federal law as being only between one man and one woman.
A federal court in Texas temporarily stayed the new FMLA rule on March 26, one day before it was to go into effect, at the request of the states of Texas, Arkansas, Louisiana and Nebraska, who argue that it violates their laws refusing to recognize same-sex marriage. However, it is expected to go into effect after the Supreme Court rules on other same-sex cases in decisions it will issue no later than June.
A reminder: The FMLA covers non-government employers who have 50 or more workers, and allows eligible employees to take up to 12 weeks of unpaid leave every 12 months to care for a newborn, spouse, child, or parent with a serious health condition, among other things.
In adopting the same-sex rule, the Labor Department followed the legal reasoning already used by the Department of Defense in recognizing such unions. Like DOD and DOL look at the "place of celebration" of the wedding instead of state of the partners' residence. As a result, if a same-sex couple was validly married in any state, they are considered "spouses" for FMLA purposes regardless of where they live later.
When the rule goes into effect, employers will need to revise their FMLA policies to reflect the new definition, and change FMLA forms to confirm family relationships consistent with it.
The Obama Administration also has taken steps to extend antidiscrimination and employment protections for gay and transgendered members of the military, federal employees and employees of companies that do business with the government.
On April 8 President Obama’s executive order went into effect prohibiting federal contractors from discriminating on the basis of sexual orientation and gender identity. This applies to all federal contractors and federally-assisted construction contractors and subcontractors with government contracts of $10,000 or more.
Contractors are now required to include gender identity and sexual orientation protections in their Equal Opportunity Clause, and must update the equal opportunity language in job applications and solicitations that promise you will treat applicants and employees without regard to their sexual orientation and gender identity.
In February the Equal Employment Opportunity Commission issued an internal memo revealing that it already has begun processing and investigating employment discrimination cases involving sexual orientation, transgender status and gender identity.
There is one important element missing from this picture, though. These actions are part of the Obama Administration’s declared intent to push the boundaries of what previously was deemed unacceptable without enabling legislation.
Since 1994 Congress has failed to pass gay employment rights protections in a bill called the Employment Non-Discrimination Act, and there is little prospect that it will pass in a Republican-controlled Congress. EEOC is proceeding under the umbrella of changes designed to protect women in the workplace that Congress added to Title VII of the Civil Rights Act in 1991 and more recently with the Lilly Ledbetter Act mandating equal pay for women and men.
Regardless of where your opinion falls on this issue, if you are an employer you have some work to do to make sure you stay legal under the new rules.
David Sparkman is founding editor of ACWI Advance, the newsletter of the American Chain of Warehouses Inc., as well as a member of the MH&L Editorial Advisory Board.