How Texas Employers Should Respond to Marriage Decision

Today’s U.S. Supreme Court decision that legalized same-sex marriage in all 50 states has Texas employers scrambling for a correct response. Businesses need to consider employee benefits, leaves of absence and many other Texas workplace policies to address the change in the definition of spouse.

Unlike some changes in the law, this one will not wait for Texas employers to catch up. Travis County had already issued 54 licenses to same sex couples by noon today. The Austin American-Statesman reported that clerks in Dallas, Bexar, Tarrant, Midland, McLennan and El Paso counties also began issuing licenses to same-sex couples and judges have already started marrying same-sex couples today in Texas.

Here are some of the employment law considerations that businesses need to address immediately:

  • Review your benefit plan documents. You will now need to include same-sex spouses in your health insurance plan, dental and vision plans, pension documents, flexible spending accounts, cafeteria plans and any other benefit in which you include opposite-sex spouses.
  • COBRA notices that inform a dependent that a departing employee’s health insurance may be continued after a termination (or for other qualifying reasons) will now need to be sent to same-sex spouses.
  • If you provide sick leave, bereavement leave or other leaves of absence to your employees for the illness or death of family members, including leaves dictated by the Family and Medical Leave Act if you employ more than 50 people, then you must apply those same leave policies in the case of an illness or death of a same-sex spouse.
  • Along the same lines, a leave of absence for the birth or adoption of a child is covered under the Family and Medical Leave Act for moms and dads and will need to address leave for either spouse in a same-sex couple. If you have less than 50 employees and allow maternity and paternity leave, you will need to allow leave for the birth or adoption of a child regardless of the gender of the new parents.
  • Severance agreements often require that the departing employee keep the agreement confidential except for legal and financial advisers and a spouse. Obviously, a same-sex spouse will be entitled to know the terms of the severance now.
  • If you have a health-care business, you need to train your employees that any information or decision-making that you have addressed with a spouse in the past will now need to be shared with a same-sex spouse.
  • In lawsuits, a same-sex spouse will now be entitled to sue for loss of consortium, emotional distress and wrongful death.

Inconsistently, discrimination on the basis of sexual orientation is still not illegal under the Texas Commission on Human Rights Act or the federal Title VII discrimination law. A claim for discrimination on the basis of same-sex marital status is also not recognized in Texas. The major Texas cities, such as Houston, Austin, Dallas, El Paso, Fort Worth and San Antonio, all have laws prohibiting sexual orientation discrimination, but that leaves a lot of areas of the state where employers can still legally fire someone for being gay.

However, I advise all employers that the law is quickly changing and I think it would be extremely ill-advised for any employer with 15 or more employees to discriminate on the basis of an employee’s sexual orientation. Churches and religious non-profits are the only exception to that advice.


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