Gay marriage ruling has far-reaching consequences for state employers

With the stroke of a federal judge's pen, the culture of Pennsylvania forever changed this spring. Gay marriage is now the law of the land. And with it come crucial workplace issues and considerations for all employers in the state.

In focusing a section of my practice at Harrisburg-based Scaringi & Scaringi P.C. on employment law, my job is to help clients -- ranging from large companies to mom-and-pop proprietors - comply with state and federal regulations.

Adapting to the legal repercussions of gay marriage in Pennsylvania is no different.

Wherever one stood in the political debate surrounding this hot-button issue, the time for that debate is over. It's now time for employers to make necessary adjustments.

For example, it is now no longer an option for employers to deny health benefits to a worker's same-sex spouse, so long as those benefits are being offered to the spouses of heterosexual employees. These benefit packages, along with any other policies as they relate to employees' families, must be identical for their married same-sex counterparts.

My advice: Don't get caught one the wrong side of what will only be a rising tide of rights for gay employees, as federal non-discrimination legislation has already been passed by the U.S. Senate and is now being taken up by the House.

U.S. District Judge John E. Jones III was unequivocal in striking down Pennsylvania's gay marriage ban. Such discriminatory laws belong on the "ash heap" of history, the judge wrote. Employers should now take their cue from the judge's ruling and throw out any workplace policies that differentiate between heterosexual and homosexual employees, including same-sex married couples and their heterosexual counterparts.

Family leave means gay families, too.

The federal Family Medical Leave Act is a great place to begin. Under the act, an employee has the right to leave work for up to 12 weeks in calendar year to tend to their own medical condition or to that of their spouse or other family member. Meanwhile, that worker's job - the same job - must be waiting for them when they return.

In light of the gay marriage ruling, employers should get busy re-writing their family leave policies to make sure it applies equally to same-sex married couples and their children. Failing to do so could leave employers open to litigation and government penalties - a well as adverse publicity.

The same goes for employer health benefits covering a worker's spouse and family.

My tip for a best-practice solution: Don't delay in having your experienced employment law attorney review and update all of your workplace policies to include and acknowledge gay marriage and same-sex benefits.

Federal vs. state on gay marriage

Should anyone have been surprised by Judge Jones's sweeping gay marriage ruling?

Probably not.

State bans on same-sex marriage have been falling, one-by-one, across the country. Pennsylvania was 13th on this list of states trumped by a federal judge when it came to their same-sex marriage bans. The fact that it was the federal judiciary overturning state laws - and state judges -- doesn't make the ruling any less enforceable.

Still, this does muddy the water a bit. It will doubtless lead to continued friction on the larger gay rights issue as the state vs. federal conflict continues to play out.

Let me explain.

One irony in Pennsylvania is that there remains no law on the books preventing employers from discriminating against workers for simply being gay. Technically, an employer in our state could fire an employee for being gay -- and said employer might not face any legal ramifications.

Still, I would never advise such a short-sighted action. When it comes to the courts, especially at the federal level, the tide has turned definitively in favor of gay rights. It's just a matter of time, in my opinion, before federal legislation cements the rights of homosexuals against discrimination of any kind.

Additionally, a company that fires an employee for being gay could face a lawsuit despite the current lack of anti-discrimination legislation in our state.

The costs to defend such a suit court could amount to penalty in and of itself. And who knows? Another judge might be looking to make his own mark on this fast-changing cultural shift to protect gay civil rights. It's clear that any company would be ill-advised to discriminate based on sexual orientation.

As an employer, you don't want to get caught on the wrong side of these emerging protections for homosexual employees.

Simply put, it's just bad business.


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