What the DOMA Decision Means for Your Workplace

more+
less-

Unless you are on a news media embargo, you have probably heard the news by now. The United States Supreme Court today issued a watershed ruling regarding the Defense of Marriage Act (DOMA), the law barring the federal government from recognizing same-sex marriages legalized by the states.  A major victor for same-sex marriage advocates, the Court held that it is unconstitutional to deny the benefits of marriage to people based on sexual orientation.

"The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Justice Anthony Kennedy wrote in the majority opinion. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” 

No doubt this decision raises many interesting legal questions and will mean a lot of work for employers and government agencies now needing to get systems in place to accommodate the change.

But What About the Impact On The Working Environment?

What most articles you’ll read on this subject don’t cover is the impact that a decision like this can have on the work environment. While employees don’t stand around the water cooler talking about the latest and greatest Supreme Court case developments – unless you work in a law firm – employees do take an interest when the developments are as big as this one.  And they can be very vocal.

Same-sex marriage tends to be a very polarizing issue – you either support it strongly or you oppose it vehemently. There really isn’t a middle ground where reasonable minds can agree to disagree.  That’s because often personal views on this topic are colored and shaped by religious beliefs and strong personal convictions.  And because it is such a heated subject, it is very difficult, if not nearly impossible, to have a civilized discussion about it.  That alone can lead to some very uncomfortable and offensive situations. 

Put all this together in a work environment, shake vigorously, throw in a supervisor or two and you can have a very troubling situation. Employee discussions can lead to workplace tensions and productivity issues, and frequently may end up as harassment complaints. And, if it’s a supervisor who makes offensive statements, not only are you dealing with potential harassment claims but you may also see the statements used against you in later discrimination or retaliation litigation.   Just as damaging, conflict over such a personal and sensitive issue can quickly erode workplace culture and do irreparable damage to employee relationships and team dynamics.

Plan Ahead – Let Employees Know What Is Expected of Them

Hot political and legal developments are not likely to stop; they will continue on indefinitely. Unless you have told your employees that discussions about politics, religion, morality and other personal beliefs likely to offend are completely off limits (an unrealistic and impossible standard), they will probably think those topics are fair game for the workplace.   

Which is why, given today’s landmark decision, you should be asking yourself: “What guidelines have we communicated about political and “moral” speech in the workplace?” 

Do employees really understand where the guardrails lie?

If you haven’t said much – or anything at all – it’s time to re-evaluate your approach. Instead of staying silent:

  • Take a strong and clear position on the appropriateness of such discussions in your harassment training programs.
  • Look for opportunities to provide short awareness education on the topic of harassment, diversity and respect.  Short and compelling training experiences, done more frequently, are some of the most impactful. You can also deploy them more quickly and if needed, reactively.
  • Make sure that policies on harassment are updated and require your employees to attest to their understanding.
  • Ensure that you’re systematically capturing reports of problems across the organization to effectively track and address them consistently.  Every reported incident of potential harassment or discrimination should be managed through a central repository, with consistent and systematic processes in place for escalation and resolution.

All of these efforts help make combatting harassment part of your overall culture. 

Don’t assume that employees understand expressing strong opinions and having heated debates about gay marriage is off limits.   What I have learned from many years of advising hundreds of employers of all sizes and across a myriad of industries is that many employees believe in the “free speech myth” at work.  But as an employer, you have an obligation (both cultural and legal) to set limits on offensive employee speech, to proactively monitor for problems, and to take corrective action when lines are crossed.

Now is the time to get proactive about communicating and educating on your policies.  Today’s same-sex marriage decision shows significant momentum in a very clear direction.  Strong protections around gay marriage are here to stay and will only expand.  (Cheers to that.)

Is your ethics and compliance program ready for the change?

Topics:  Anti-Harassment Policies, Discrimination, DOMA, Due Process, Equal Protection, Same-Sex Marriage, SCOTUS, Sexual Orientation Discrimination, US v Windsor

Published In: Civil Rights Updates, Constitutional Law Updates, Family Law Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© NAVEX Global | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »