On June 26, 2015, the Supreme Court ruled marriage is a constitutionally protected right for all Americans, ensuring same-sex couples could legally marry in all 50 states.

The ruling in the case, Obergefell vs. Hodges, said the 14th Amendment's Due Process Clause and the Equal Protection Clause gave same-sex couples the same right to marriage as anyone else.

The issue had been politically divisive for years; however, for employers and HR departments, the ruling simplified benefits administration in many ways.

Employers with sites in different states no longer have to have different policies depending on whether or not same-sex marriage was legal in a specific jurisdiction. However, challenges around same-sex couples still remain for employers—most notably in the question of whether companies offer benefits to domestic partners.

The case that made same-sex marriage legal

The Obergefell in this case was James Obergefell, who traveled with his partner, John Arthur, to Maryland in 2013 to marry. At the time, Maryland recognized same-sex marriages; the couple's home state of Ohio did not.

Arthur was terminally ill with ALS, and sought to have Obergefell designated as his surviving spouse. Other cases, one from Ohio, one from Michigan, and two each from Kentucky and Tennessee, were merged with the Obergefell case, which eventually become known as Obergefell vs. Hodges (Hodges was the head of Ohio's health department at the time the case appeared before the Supreme Court).

In 2015, when the Supreme Court took up the case, same-sex marriage was legal in 36 states and the District of Columbia. Previous court cases had led to rulings allowing states to make their own decision on whether to ban same-sex marriage or allow it.

Obergefell vs. Hodges was argued before the Supreme Court on April 28, and the Justices decided in a 5-4 ruling that same-sex marriage bans were a violation of the Equal Protection Clause and the Due Process Clause in the 14th Amendment of the Constitution.

Validating workplace trends

In many ways, the Obergefell vs. Hodges ruling simply validated a trend which was already developing. Family-related issues such as work/life balance and paid maternal leave are just two of many areas where employers have been rapidly expanding benefits in order to retain and attract workers. Policies that covered spouses and domestic partners were already common among many employers.

“In large part, the market was heading that way anyways, especially for large employers,” says Todd A. Solomon, a benefits specialist and partner at McDermott Will & Emery. Without a patchwork of laws in different states, employers could set one policy for all employees.

“People were pleased with the ease of administration [after the ruling],” he says. “It was much simpler from an HR perspective.”

According to Tami Simon, managing director of Conduent HR Services' knowledge resource center, businesses in the U.S. have adapted relatively well to Obergefell vs. Hodges.

“Change generally requires a period of adjustment and this situation was no different,” she says. “Employee communications, plan documents, and payroll administration were some of the items that needed adjustment for the changes resulting from this decision. However, employers who were monitoring these issues and understood the implications were, for the most part, prepared.”

Simon also notes the Obergefell vs. Hodges ruling will affect more than just health insurance benefits. “Two areas that have fostered a bit more discussion are adoption benefits and in-vitro fertilization,” she says. “Both benefits relate to same-sex couples and parental rights. These are sensitive issues where the laws are still evolving.”

Remaining concern: domestic partnerships

Since the ruling, the Human Rights Campaign (HRC), one of the leading organizations to battle for legalizing same-sex marriage, has expressed concerns about how domestic partners are covered, especially in the 28 states which do not have laws protecting LGBT rights.

The campaign is calling for employers to offer benefits to both married partners and domestic partners. HRC officials say that having to apply for a public marriage license in states without legal protections can effectively “out” a couple who may be comfortable with an employer knowing their status, but may have reason to fear discrimination from other sources.

“Marriage is now the law of the land, but other rights are not the same for LGBT employees across the country,” says Beck Bailey, deputy director of employee engagement at HRC. “From our perspective, the domestic partnership benefits are important because same-sex couples are facing risks that different-sex partners do not.”

HRC publishes a Corporate Equality Index every year; a report which rates businesses on their treatment of LGBT employees, consumers and investors. The 2017 report notes next year it will begin requiring companies to offer domestic partnership benefits in order to get a perfect score.

“LGBT Americans can get legally married, but remain at risk of being denied services for who they are or risk being fired simply for getting married and wearing their wedding ring to the office the next day,” the report says.

“Lacking protections based on sexual orientation and gender identity through federal and consistent state law, it remains legal to discriminate against LGBT individuals in employment, housing and access to public places, federal funding, credit, education and jury service.”

SHRM sees increase in coverage of same-sex spouses

The Society for Human Resource Management's (SHRM) latest benefits survey shows a continued trend toward coverage of same-sex spouses, says Nancy Hammer, senior government affairs policy counsel for the group.

“From 2014 to 2016, we've seen a large increase in coverage of both opposite- and same-sex spouses,” she says. “A gap still exists: 95 percent of companies offer to opposite-sex couples; 85 percent offer coverage to same-sex couples.

“We're not sure why there's still that gap—we didn't ask that question,” Hammer says. But, she adds the lack of anti-discrimination laws in some states might be a factor, just as HRC suggests. “It might be attributable to the fact that in some jurisdictions, sexual orientation is not a protected class. That may result in some employers not offering [benefits] to same-sex spouses.”

Hammer says there may also simply be a compliance gap, as smaller employers play catch-up with both the law and HR trends. She adds the SHRM surveys do not show employers dropping domestic partnership coverage after the Obergefell vs. Hodges ruling. “That surprised me, but it may just be that once you offer a benefit, it's hard to remove it,” she says.

“Perhaps employers are continuing to think that this is a way to attract the kind of employees they want. They're seeing that those benefits still have a real value in the workplace.”

Instant Insights /

Obergefell vs. Hodges: Marriage equality and the workplace, two years later

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