The Issue: How do the Supreme Court's rulings in the Defense of Marriage Act and Proposition 8 cases affect California workplaces?
The Solution: In California, aside from changes to benefit plans, human resource professionals will encounter only limited modifications to family leave policies and administration. (See accompanying article for the effects on benefit plans.)
Analysis: Under federal law, these rulings confer a new right to leave to care for same-sex spouses under the Family Medical Leave Act. In California, however, registered domestic partners are already afforded the same rights as spouses under state law. Therefore, material changes will only take effect in the rare instances where leave under the California Family Rights Act and the FMLA do not overlap (most notably in the context of pregnancy leaves). Otherwise, while these landmark opinions are viewed as indicia of growing concern for express legal acknowledgment of lesbian and gay rights, neither directly addresses issues of discrimination beyond the context of marital status. In nearly every session since 1994, Congress has rejected the Employment Non-Discrimination Act (ENDA), that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identify by civilian, nonreligious employers with at least 15 employees. If and when ENDA or similar legislation is passed, federal employers will potentially have to augment their workplace policies and practices under federal law, as Title VII of the 1964 Civil Rights Act's protections are limited to discrimination based on "race, color, religion, sex and national origin." In California, however, employees already enjoy the protections of California's Fair Employment and Housing Act (FEHA), which expressly prohibits discrimination on the basis of "gender, gender identity, gender expression ...or sexual orientation." Cal. Gov. Code § 12921, subd. (a)
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