The Kentucky Clerk in Your Workplace
Posted 09.04.15
Jonathan A. Segal

The Kentucky Clerk who has refused to issue marriage licenses to same-sex couples is going to jail.  She has tried to justify her refusal to perform her job on the ground that to do so would violate her religious beliefs as protected by the Constitution.

Good thing employers do not have to deal with this kind of issue.  Or do we?

By way of background, in Obergefell, the Supreme Court struck down Section 2 of The Defense of Marriage Act (“DOMA”).  More specifically, the Supreme Court held, in a 5 to 4 decision, that the constitutional right of marriage covers same-sex couples so that no state can deny them the right.

While the decision on its face applies only to states in terms of recognizing same-sex marriage, as a practical matter, for complicated legal reasons, employers generally will have to offer same-sex spouses the same coverage as opposite-sex spouses.  While employers with self-insurance plans may have a little more flexibility, there are substantial discrimination risks in treating same-sex spouses differently.  In this regard, the EEOC has taken the position that Title VII’s prohibition on sex discrimination covers sexual orientation.

With this background, we return to who may be your “Kentucky Clerk.”  It may be a human resources employee who handles employee benefits.

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About Jonathan A. Segal
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .