In no way is ILCS advocating employing people with same sex spouses or who identify themselves as anything other than heterosexual as presented in the Bible. This article simply demonstrates some land mines that this ruling has created.

Reprinted with permission from

Private Education Law Report.
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You want to avoid lawsuits and keep your school in legal compliance – and that’s exactly what we always want to help you with.

That’s why we’re going to look at the ways Obergefell v. Hodges – the U.S. Supreme Court decision that makes same-sex marriage legal in all states – may affect your school.

We’ll start with the basic compliance and lawsuit-prevention issues that apply to most schools.

Then we’ll move on to the implications for the religious schools that object to same-sex marriage on religious grounds – so object to employing someone who has a same-sex spouse.

Check Your Local Law

First – good advice always, but especially important now – check for new compliance guidance concerning your state and local laws.

In case you don’t have them bookmarked, the IRS links to each state’s key employers’ websites from irs.gov/Businesses/Small-Businesses-&-Self-Employed/State-Links-1 (or this shortcut: goo.gl/hqxm07).

From that page, we suggest you start with your state’s revenue department. Obergefell may have resolved the complicated W-4 scenario the Court’s 2013 U.S. v. Windsor same-sex marriage decision created: Some people were “married” on their federal tax returns but “single” on their state returns.

At the very least, you’ll want to make sure you have your W-4s in order now – and there could be other new tax guidance as well.

Spousal Leave and Benefits

Your likeliest compliance risk in the wake of Obergefell is failing to provide the rights or benefits an employee or employee’s same-sex spouse is now entitled to.

This could lead to a penalty, a lawsuit, or both.

Areas to watch for include:

  • any family coverage you offer for health, dental, and vision care
  • COBRA coverage, and
  • state-law leave time (bereavement, family and medical, etc.) related to a spouse or the spouse’s side of the family. (Leave under the federal Family and Medical Leave Act has been available for same-sex spouses since February 2015.)

Avoid Bias Lawsuits

Another new danger is that Obergefell may have upped the risk of discrimination suits – especially if your state or local law protects employees from bias In addition to the areas noted above, treat staff’s same-sex spouses equally in terms of things like:

  • invitations to school events
  • mentions in the employee’s online bio, and
  • photos in school materials that share info about staff families.

Another tactic is to make it someone’s job
(maybe yours) to be on top of this. One approach:

  • brainstorm to identify the ways you already
    include staff spouses
  • put the ways on a checklist
  • email all staff to remind them to let you know if their marital status changes so you can adjust W-4s and benefits, and
  • use the checklist to make sure you treat each married employee and spouse equally,

But what if you are biased against same-sex marriage – and your school’s religion demands it?

Must You Hire Them?

Not all religious schools are opposed to same-sex marriage. If yours is, the question of whether you can refuse to employ a person who has a same-sex spouse or fiance is already playing out in the courts.

We’re waiting for the decisions.

It’s brought under the federal Title VII and has the potential to create legal precedent that will weigh heavily nationwide.

No Definite Answers Yet

On the state level, we were watching a Washington state suit brought by a fired vice principal – Zmuda v. Corp. of the Archbishop of Seattle – but it settled late in 2014.

The most sobering implication from that case:

The Archdiocese of Seattle not only decided to pay the former vice principal rather than risk a trial, it made that decision after the court refused to dismiss the case on the basis that deciding it would violate the Archdiocese of Seattle’s First Amendment Rights.

A Massachusetts case we’re watching was brought by Matt Barrett after Fontbonne Academy, a Catholic school, rescinded its decision to hire him as food services director after he listed his same-sex spouse as his emergency contact.

He’s suing for sex- and sexual-orientation-bias under state law.

What Does ‘Protection’ Mean?

Obergefell says the religious “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.

The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

“Proper protection?” What does that mean? Protection against suit if you limit your staff to those whose life choices align with your faith and model that faith to your students?

Or are you just protected if you want to talk about it?

We don’t know yet.

Concerned? Take Action

City and state laws that protect employees from sexual-orientation bias generally include exceptions for religious employers.

If courts start reading Title VII’s ban on sex bias to ban sexual-orientation bias, Congress has the power to amend the law to say it doesn’t or to exempt religious groups.

While we wait for the situation to clarify, now might be the time to look into getting involved in grass roots efforts.

 

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