Same-sex marriage became legal in North Carolina on Oct. 10. Marriage licenses were issued that day to same-sex couples. Changes will come to the workplace as a result.
Marital status affects individual rights under nearly 1,000 federal rules, statutes and orders. Employer policies add to that complexity by creating and defining certain employee rights and benefits as dependent on marital status.
The general legal rule should now be that same-sex marriages are entitled to the same workplace protections, advantages and obligations as traditional marriages. Nothing is that easy in law. Some questions are unclear and will take time to sort out.
What about maternity leave policies that are designed for post-delivery physical recovery and often not available to the father?
While it may no longer make sense to have such distinctions, the point is these voluntary promises made to employees should be reviewed for consistency with the law and employer intent.
For example, federal civil rights law speaks to race and sex discrimination at work, but does not explicitly prohibit same-sex marriage discrimination. Will the law now cover claims of mistreatment of a same-sex spouse at work? It seems this will depend on whether a court views the claim as one of sex discrimination (covered) or sexual orientation bias (not covered).
A covered employer is not required to provide or pay for spousal health benefits under the federal Affordable Care Act, but if provided, they must now be offered on the same terms to all married couples.
What about insurance contracts, retirement benefits and other promises made or purchased years ago using the word spouse with the actuarial assumption only spouses in a traditional marriage were covered? Was there a definition of spouse in the document? That could determine today’s rights under the agreement.
Regardless of where you stand, it seems U.S. District Judge Max Cogburn Jr. decided the biggest issue on Oct. 10. Employers and employees should stay alert to the second level issues and perhaps more judicial orders.
Bruce Clarke, J.D., is CEO of CAI, helping more than 1,000 North Carolina employers maximize employee engagement and minimize employer liability. For more information, visit www.capital.org.