© 2015 The Texas Lawbook.
By Mark Curriden
(June 29) – Minutes after the U.S. Supreme Court legalized same-sex marriage Friday, lawyers across Texas say their phones starting ringing with business clients asking a simple question:
What do they need to do now?
The unanimous answer, according to legal experts, is they need to do a lot and they need to do it fast or possibly pay the consequences.
The Supreme Court’s decision last week to make same-sex marriage a fundamental right under the U.S. Constitution also triggered a series of dominoes that impacts nearly every business operating in the U.S., but it will almost certainly have a significantly bigger impact on businesses in Texas than in any other state.
The reason, according to business lawyers, is that a great majority of employers in Texas, including the state government and its agencies, have either previously opposed or declined to address extending health insurance, family or medical leave options and retirement benefits to employees involved in same-sex unions.
“If an employer provides benefits to anyone who is currently married, they must now treat gay and lesbian employees the same and offer them the exact same benefits,” said Neel Lane, a San Antonio lawyer at the corporate law firm Akin Gump Strauss Hauer & Feld.
Lawyers said Friday and Saturday that they have been inundated with calls – mainly from small and medium-sized business owners – seeking legal advice on updating employment and benefits forms but also asking if there are ways under Texas law to avoid having to make any changes.
“The answer is no – there is no choice for companies in Texas or anywhere in the U.S. but to expand their benefits,” said Ron Chapman, a partner at Ogletree Deakins in Dallas who specializes in employment law issues.
James Griffin, an expert on employment benefits and federal tax law at Jackson Walker in Dallas, said the legal advice he is giving his business clients is simple:
“Don’t waste your time looking for ways to defeat this,” Griffin said. “The Supreme Court decision is very broad. This issue is done. Make the changes and move on.”
Griffin and other lawyers say most large corporations, such as AT&T, American Airlines and Exxon Mobil, implemented policies years ago that extended benefits to same-sex couples.
But they say that many Texas-based companies that operate exclusively within the state have not addressed the issue because they’ve never had an employee come forward and claim that they are gay and want benefits for their partner.
Lawyers say that because Texas political leaders have been adamantly anti-same-sex marriage and benefits, many workers were afraid to step forward.
“Now, because of the Supreme Court ruling, a lot of people who have been reluctant are going to raise their hand for the benefits and the companies have to address it,” said Mark Shank, an employment law partner at Gruber Hurst Elrod Johansen Hail Shank in Dallas.
The employer impacted the most by the decision, lawyers agree, is the state government, which is the largest employer in Texas.
Texas Attorney General Ken Paxton and his press office did not respond to multiple inquiries about how the ruling will be implemented in practical terms. The office did issue a political advocacy press release condemning the Supreme Court decision, but the announcement provided no leadership or guidance to state workers regarding the process or timing on updating the state’s policies and procedures.
Legal experts say the first major domino likely to fall will occur in federal court in Wichita Falls, where a federal judge in March, at the request of Gov. Greg Abbott and Attorney General Paxton, issued an injunction that prevented the federal Family and Medical Leave Act from applying to same-sex couples in Texas.
Because of the ruling, Texas was one of four states in the U.S. where FMLA benefits have been denied to gay couples involved in civil unions.
“That decision will almost certainly be reversed right away,” said David Coale, a partner at Lynn Tillotson Pinker & Cox. “State political leaders may try to fight it, but they are going to lose and then they are going to have to pay a lot of money to lawyers for pursuing frivolous legal claims.”
Fox said employers should review their employee handbooks immediately.
“Many personnel policies either expressly or implicitly address an employee’s marital status,” Fox said. “Discretionary benefits such as bereavement leave, relocation allowances, and employee discount plans should be evaluated regarding the applicable definition of “spouse” in any employer-sponsored plan.
“For most purposes in life – like taxes and employer-provided benefits – the term ‘husband-wife’ is now irrelevant,” he said.
Stephen Roppolo, a partner at Fisher & Phillips in Houston, agrees.
“Texas employers should review handbooks and policies to ensure that there are no provisions that specifically exclude same-sex couples from employment benefits, like leave time or health and life insurance,” Roppolo said.
“The truth is, most handbooks and policies simply refer to ‘spouses,’ without defining the term, and since the Supreme Court essentially clarified what the terms means from a legal perspective, they might not need to change anything,” he said. “Rather, they might just have to begin applying their policies differently, at least when they refer to ‘spouses.’”
Chapman said the good news for Texas businesses is that the changes they need to make are neither complicated nor expensive, but he said that companies should not delay their compliance.
“Those companies need to update their policies sooner rather than later. If they wait, they will be sued and they will lose,” Chapman said.
Fox and others point out that while the right to same-sex marriage is now set in stone, gay individuals’ right to employment is not as nearly as concrete.
“Gay and lesbian Americans can now get married nationwide, but they can still be fired for their sexual orientation in 28 states,” Fox said. “That’s because only 22 states and the District of Columbia have passed legislation that prevents workers from being fired because they are gay or lesbian.”
Roppolo said that unless Title VII is amended, federal law still does not include ‘sexual orientation’ or ‘transgender status’ as protected categories like race, religion, or national origin.
“While there are cases that have stretched existing federal law to prohibit adverse employment action against employees on the basis of improper ‘sexual stereotyping’ – for example, taking action against a male employee because he does not act ‘masculine’ enough – federal employment law still does not make discrimination against gays and lesbians explicitly illegal.” Roppolo said.
“However, many local governments, including Houston, have extended such protection to employees of most private companies,” he said.
© 2014 The Texas Lawbook. Content of The Texas Lawbook is controlled and protected by specific licensing agreements with our subscribers and under federal copyright laws. Any distribution of this content without the consent of The Texas Lawbook is prohibited.
If you see any inaccuracy in any article in The Texas Lawbook, please contact us. Our goal is content that is 100% true and accurate. Thank you.