"Supreme Court Rules for Marriage: What it means for employers" was the focus of the first of many Corporate Social Responsibility ( CSR ) training sessions recently at Seyfarth Shaw LLP's Chicago offices.
Hosted by Equality Illinois, in partnership with Seyfarth Shaw, the CSR training sessions are intended for local to national level business executives and corporate decision-makers as well as diversity and inclusion, community affairs and HR professionals.
Bernard Cherkasov, Equality Illinois' CEO, explained the reasoning behind the CSR training sessions ahead of a presentation by Seyfarth Shaw's Jennifer Kraft, partner in the employee-benefits department and co-chair of the firm's welfare benefits practice group, and Sam Schwartz-Fenwick, an associate in the Labor and Employment Practice Group and leader of the firm's LGBT affinity group.
"The sessions are designed to help individuals understand the various elements of what it means to provide for a fair and inclusive workplace for LGBT individuals," said Cherkasov.
Cherkasov also spoke about Equality Illinois' newest publication—Corporate Best Practices: A Guide to LGBT-Inclusive Workplaces in Illinois which is available here. The publication is a part of the organization's ongoing endeavor to create welcoming and affirming workplaces for LGBT employees.
Schwartz-Fenwick spoke about the holding of the Obergefell v. Hodges case and the impact it will have on employment discrimination and employee benefits issues while Kraft explained the employee benefits consequences of the Windsor and Obergefell decisions as they relate to what plan administrators should be doing.
The Obergefell ruling in favor of nation-wide marriage equality was the result of 44 years of same-sex marriage litigation beginning with the 1971 Baker v. Nelson decision that denied marriage rights to same-sex couples, said Schwartz-Fenwick. He also explained how the Hawaii Supreme Court Baehr v. Miike decision, the federal Defense of Marriage Act and the Massachusetts Appellate Court Goodridge v. Dept. of Public Health decision led to the United States v. Windsor, Hollingsworth v. Perry and Obergefell v. Hodges rulings.
Schwartz-Fenwick noted that, in terms of employment law and employee benefits, it is important to look at the Supreme Court's ruling in Obergefell v. Hodges. He explained that since the Supreme Court only ruled that there is a fundamental right to marriage regardless of sexual orientation based on the due process and equal protection clauses of the U.S. Constitution but also inserted language regarding the First Amendment that said individuals have the religious right to object to same-sex marriage this could create future litigation based on this ruling.
Kraft explained that after the Windsor decision many things changed on the federal level as the Internal Revenue Code and the Employee Retirement Income Security Act benefits provisions related to "spouses" now applied to same-sex married couples. She noted that in rare cases retroactive benefits could be provided if the couple was married prior to the Windsor decision.
"This interplay between the state and federal law is really where the Obergefell decision had the greatest impact from a benefits perspective," said Kraft. "For fully insured plans state insurance law mandates that apply to spouses also apply to same-sex spouses even in states that didn't recognize same-sex marriage prior to the Obergefell decision."
"In terms of benefits for same-sex spouses, they are no longer subjected to state taxes if they wouldn't be taxable for opposite-sex spouses," said Kraft. "Since there isn't a federal mandate on who companies have to offer coverage to employers technically have the right to define spouse for the purposes of their health and welfare benefits as only applying to opposite-sex spouses, however, these employers are at an increased risk of litigation by employees."
Schwartz-Fenwick said that in terms of excluding same-sex spouses from health coverage post Windsor and Obergefell employers have to expressly say it in all documents. He also noted the lack of a federal law prohibiting discrimination based on sexual orientation and gender identity and this could affect same-sex couples in terms of employment in states that don't protect individuals based on their sexual orientation and/or gender identity.
Schwartz-Fenwick noted that although the LGBT community has made great strides with marriage equality there is still the issue of the Hobby Lobby decision and religious freedom laws that exists in a number of states and the federal level that could undermine the advances that the LGBT community has made. He explained that employment discrimination litigation is sure to follow the Obergefell decision.
Equality Illinois will be hosting other CSR training sessions in partnership with Seyfarth Shaw LLP through the end of the year—"Transitioning from Good to Great: Gender identity issues in the workplace," "Employee Benefits Best Practices," "Open for Business: LGBT consumers and public accommodation laws," "Diversity & Inclusion: Training, policies, and other practices" and "Workplace Policies & Practices: From recruiting to retaining the best talent."
Attendees received one hour of Continuing Legal Education credit for attending the session and will receive one hour of credit for each additional session they attend.
See www.equalityillinois.us/csr for more information.
