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June 26, 2015 • joedolson

On June 26, 2015, in a 5-to-4 decision authored by Justice Kennedy (and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan) (Obergefell v. Hodges, No. 14-556 (June 26, 2015) and as a result of this decision, employers should familiarize themselves with the impact of Obergefell from both an employment law and benefits perspective.

The Court’s decision does not directly impact any employee rights or employer responsibilities under the Americans with Disabilities Act (ADA). Even though lesbian, gay, and bisexual employees now have the right to marry in each state, and that right ostensibly is premised on their sexual orientation, Obergefell in no way expands the definition of who is considered “disabled” for purposes of the ADA. Legal challenges to the definition of a disability in the ADA, which some view as outdated, could possibly arise in the future, especially given the focus on equal protection in Obergefell.

Obergefell does not appear to expand associational discrimination claims under the ADA as no spousal relationship is necessary to show association with a disabled individual. For instance, if a gay employee’s same-sex spouse has cancer and the employee believes his employer takes adverse action against him due to his association with his spouse as a result of that disability, the fact that the employee is married seems unlikely to make any substantial difference in whether one is associated with a person with disability for purposes of the ADA. (See e.g. Saladin v. Turner, 936 F. Supp. 1571, 1581 (N.D. Okla. 1996) (employer liable for associational discrimination where employee was suspended because of his association with his male partner who had been diagnosed with AIDS).

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