Employment Implications of Same Sex Marriage


On June 26, 2015, the United States Supreme Court ruled that bans on same sex marriages were unconstitutional.  In a 5-4 decision, the Supreme Court held that laws like Indiana Code § 31-11-1-1 passed in 1997 defining marriage as being between one man and one woman, violate the rights of those who want to marry a person of the same gender.

What changes for an employer

Any employment benefit or rights of a spouse must now be extended to a same sex spouse. Presumably, the employee must be married. While the Supreme Court has ruled that a traditional definition of marriage is no longer the law of the land, an employer may still require that there be a marriage before extending benefits.

Some employers may have previously provided benefits to employees in a civil union or a long-term relationship. It would appear to be appropriate that same sex partners seeking benefits of a spouse prove that they are married. Some examples of the impact of Obergfell on employer benefits follow.

Tax Withholding

All employees complete a W-4 Withholding form. While an employee could always withhold more, clearly a “spouse” as designated on the W-4 now includes a same sex spouse for withholding purposes.


Most employer benefits related to insurance allow for spousal and family coverage. Same sex spouses may now be covered under health insurance, life insurance or other employer sponsored benefit plans that extend coverage to a spouse.

Family and Medical Leave Act

Statutory and contractual leaves available to a spouse must be granted to same sex partners who are married. This may not be a substantial change though. The US Department of Labor had issued a notice of rule change in 2014 intending to clarify the rights of employees to leave to care for a same sex spouse or the child of a same sex spouse. The rule was finalized on March 27, 2015, and indicated that the Department of Labor would look to the laws of the place of celebration to determine if the employee was legally married to a same sex spouse.


There is still no federal employment protection for homosexuals as a specific class of individuals, like race, gender, age, disability, etc.
However, Indiana does recognize wrongful discharge as a tort claim in situations where an adverse job action interferes with an employee’s liberty rights. If an employer terminates an employee for being involved in a same sex marriage, it could be argued that the termination is interference with the Constitutional right to liberty to be married and amounts to an actionable claim for wrongful discharge.

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If you have any questions, please contact your Rothberg lawyer or Ted Storer at tstorer@rlwlawfirm.com

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