An Employer's Guide: What do the Supreme Court's landmark decisions mean to business?
Part I: Affordable Care Act
Part II: Same-sex marriage
Last month’s historic Supreme Court decision on gay marriage means certain action for business owners nationwide. In Springfield Business Journal research, four key items surfaced for area employers: policies, benefits, sales transactions and religious freedoms.
Here’s a guide.
Sick-leave policies
Under the Family and Medical Leave Act, many businesses across the country already have to provide sick leave for spouses. Now, businesses have to be mindful of extending those opportunities to same-sex spouses.
“If you have 50 employees or more, you are obligated to provide 12 weeks of unpaid leave to individuals if they have what’s called a serious health condition. You also have to provide up to 12 weeks off unpaid for a spouse,” said labor and employment lawyer Tedrick Housh, a partner with Kansas City-based Lathrop & Gage LLP. “And if you adopt a child, that can be 12 weeks, or six weeks each, if you both work for the same company.”
According to the Department of Labor, the FMLA applies to all public agencies and private employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year. That includes joint employers and successors of covered employers.
Domestic-partner benefits
Before same-sex marriage was legalized, larger companies such as The Walt Disney Co. and Lockheed Martin Corp. established domestic-partner benefits ahead of the cultural curve. According to the Human Rights Campaign, 89 percent of Fortune 500 companies now include sexual orientation in their nondiscrimination policies and two thirds include gender identity. Housh said companies now should review their domestic-partner benefits.
Then a bottom-line question arises: Should the company continue to offer domestic-partner benefits?
“Now, everyone can get married, right?” Housh said.
They might be worth keeping, he said, because of changing attitudes about marriage. According to the Pew Research Center, 68 percent of millennials have never been married, and those who have put it off. In 1963, the average American woman married at 21 years old and the average man wed at 23. By 2014, those figures moved to ages 27 for women and 29 for men.
“The younger generation who is cohabiting at twice the rate of others might say, ‘Hey, what about those domestic-partner benefits?’” Housh said. “Times are hard. Costs are expensive. These are factors for businesses to consider.”
Jay Dade, a shareholder with Polsinelli PC who splits time between Springfield and Kansas City, said such employers as Verizon and Delta Air Lines already have moved to eliminate domestic-partner benefits.
“The question remains for such employers is whether doing so makes the better sense administratively, as well as regarding employee recruitment, retention and morale,” Dade said in an email.
Cake-baker’s choice
Questions now turn to sales transactions. Take the wedding cake makers or photographers who operate on politically conservative values. Are they now legally obligated to provide goods or services for same-sex weddings?
The answer, according Housh, depends on where one lives. In the Springfield area? No.
“If you are a merchant and you do not want to do business with someone because of their sexual orientation, there’s no prohibition to that under federal law,” Housh said.
Long before there was the Civil Rights Act of 1964 – which prohibits discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, referral and other aspects of employment on the basis of race, color, religion, sex, national origin, disability and age – there was the Civil Rights Act of 1866. That outlawed discrimination based on race in contracts, and it has been extended to companies that are open for business and engaged in the sale of goods, Housh said.
While the United States has a long legal history of prohibiting discrimination, not all groups are protected.
“There’s not a civil-rights act for sexual orientation. There’s not even one for gender,” he said.
According to the U.S. Equal Employment Opportunity Commission, which was established under the Civil Rights Act of 1964 to enforce federal nondiscrimination laws, there were 1,808 charges of discrimination in Missouri during fiscal 2014. That represents 2 percent of all charges received that year in the United States.
Several individual states such as California and municipalities from New York to San Francisco have antidiscrimination codes in place that prohibit discrimination based on sexual orientation. Additionally, through an executive order, President Barack Obama made it illegal for federal contractors to discriminate based on orientation.
However, in April, Springfield voters narrowly repealed a city ordinance that prohibited discrimination based on sexual orientation and gender identity in the areas of housing, employment and public accommodations.
So, local business owners practicing religious freedoms can use discretion in sales transactions, but not in dealings with transgender individuals, according to Housh.
“The Department of Justice has taken the position that transgender people are protected under Title VII, which is one of the federal nondiscrimination laws. If you are discriminating against someone who is transgender, it is because of (his or her) sex,” he said.
Religious corporations
While states must recognize same-sex marriage – on July 7, Gov. Jay Nixon signed an executive order that all Missouri agencies and local governments must comply with the Supreme Court Obergefell ruling – Housh said that doesn’t mean churches have to conduct ceremonies.
He pointed to comments made by Justice Anthony Kennedy in the ruling.
“Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here,” Justice Kennedy wrote in the majority opinion.
And the Supreme Court has demonstrated support before for businesses that actively promote the religious beliefs of their owners.
“The Hobby Lobby decision did carve out an area for corporations to argue that they are entitled to religious freedom,” Housh said.
Through that decision, which leaned on the Religious Freedom and Restoration Act of 1993, the high court ruled there would be religious exemptions to the contraception requirements under the Affordable Care Act. Around 20 states have passed versions of the RFRA, including Missouri, and about 30 have laws in line with the RFRA.
Yet, there is still room for determination where rights overlap, according to Housh.
“It’s like a Venn diagram,” Housh said. “Each of these decisions by the Supreme Court sets out certain rights. To the degree that these rights conflict, we probably will be left with gray area.”[[In-content Ad]]
