December 2022: U.S. Congress Passes Landmark Bill Protecting Same-Sex Marriage

21 Dec

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Update Applicable to:
All employers.

What happened?
On December 13, 2022, President Biden signed an amendment to the “Respect for Marriage Act” into law, requiring states to fully recognize such marriages that are legally formed in other states.

What are the details and what should employers do?
While the Respect for Marriage Act does not afford any additional rights to workers than what is already available under the current Supreme Court of the United States (SCOTUS) precedent, employers should take this opportunity to review their benefits offerings – as well as their diversity, equity, and inclusion (DEI) policies – to ensure they align with current federal law and any applicable state and local laws.

Insured group health plans will continue to permit same-sex spouses to elect coverage just as opposite-sex spouses. And, while self-funded group health plans could attempt to exclude same-sex spouses, existing judicial precedent and the EEOC’s interpretation of Title VII of the Civil Rights Act in this context likely means doing so would invite a legal challenge.

Employers should also ensure their DEI policies align with the 2020 SCOTUS decision in Bostock v. Clayton County, holding that Title VII shields workers from discrimination based on sexual orientation and gender identity. Likewise, you should note that many states have laws protecting LGBTQ workers that predate the SCOTUS ruling and may provide additional rights.

In light of these developments, you should also consider providing training to employees – particularly managers and human resources staff involved with hiring, promotion, discipline, and discharge – to ensure they are aware that sexual orientation and gender identity are protected categories and cannot be the basis of any employment decisions.

For more information, please see the links below:

Respect for Marriage Act

Article 1Article 2

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