Gay Marriage and Sexual Orientation: What Your HR Department Should Know

With two significant federal rulings regarding discrimination and sexual orientation occurring over the summer, now is a good time to review your employee benefits, discrimination and harassment policies and practices related to the Family and Medical Leave Act (FMLA).

In June, the U.S. Supreme Court ruled that same-sex couples can legally marry. And in July, the Equal Employment Opportunity Commission ruled that employers are prohibited from taking adverse employment action based on “sex-based considerations,” including sexual orientation.

The latter ruling arose from a complaint brought by a former air traffic controller, passed over for a job opening in a Federal Aviation Administration (FAA) control tower. The man alleged that he was passed over for the job because of his supervisors' knowledge of his homosexuality.

This ruling, if upheld by the courts, will require workplace protection from discrimination for same-sex couples and all gay people. And it is likely to be upheld, considering that the Supreme Court has previously ruled that sex-role stereotyping and same-sex sexual harassment are illegal.

Here are some things to keep in mind as you review your workplace policies.

1. Same-sex married couples now qualify for married employee benefits at a company.

Some economic experts predict that the inclusion of same-sex couples in employee benefits could ultimately cause some employers to reduce their coverage for married couples or eliminate benefits like domestic partner benefits for unmarried couples who are living together. But you must weigh the reduction in costs versus the risk of losing good employees to competitors with better benefits.

2. Same-sex married couples must be granted the same Family and Medical Leave as heterosexual married couples.

Effective March 27, 2015, the Department of Labor amended FMLA regulations so that eligible employees in legal same-sex marriages are able to take FMLA leave to care for a spouse, regardless of the state in which they live.

3. With the new rulings, company leadership should encourage a culture of acceptance when it comes to sexual orientation and gender identity.

While some individual states may still debate whether sexual orientation is a protected class, it appears, most likely, that any statewide limitation on sexual orientation being a protected class will ultimately prove to be invalid. The recent EEOC ruling was a clear step in this direction.

4. Employers should look at their best practices to ensure a race, religious and gender-neutral workplace to comply with the anticipated full protection of sexual orientation from discrimination. These may include:

• Incorporating sexual orientation guidelines into existing diversity training programs for managers.
• Establishing a clear policy prohibiting disparaging remarks about sexual orientation in the workplace. Employers should explain that employees may oppose same-sex marriage rights, but they do not have the right to harass others based on their sexual orientation.
• Reminding employees that they have a right to bring to the attention of their manager or the human resources department any verbal exchanges or other actions that make them uncomfortable.
• Making the decision to prohibit sexual orientation discrimination. Companies may choose to try and walk the fine line between prohibiting harassment without banning discrimination outright. Yet it is easier to enforce an across-the-board policy prohibiting discrimination based on sexual orientation rather than continuing to walk that fine line.

With clear policies in place, your HR staff can train supervisors regarding the scope of what is and is not permitted when it comes to discrimination and harassment. Employees who do not abide by the policies should be formally disciplined.

Lip service will do nothing. If you have such behavior on the factory floor, you want to put a stop to it now.

We recommend that you train your supervisors to not tolerate any supposedly “good natured teasing” based on any illegal reason, including sexual orientation, and make sure workers have a place to raise complaints, such as a hotline to report inappropriate behavior.

Your front-line supervisors are the most likely to witness inappropriate behavior, so they, especially, should be trained in how to recognize and appropriately handle it. 

M. Clark Spoden is a partner at Burr & Forman LLP (Nashville, Tenn.) who represents manufacturers in employment matters. He is certified in Tennessee as a specialist in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Institute of Trial Advocacy.