A Better Balance celebrates the Supreme Court’s ruling this morning in Obergefell v. Hodges, which makes marriage equality the law of the land! With this landmark decision, same-sex spouses and their children in every state will be able to access more than a thousand federal rights, benefits, and protections that depend on marital status. Of these many rights, one is full recognition of same-sex spouses under the Family and Medical Leave Act (FMLA), a federal law that—among other purposes—provides eligible workers with unpaid leave to care for a seriously ill spouse. A clear outcome of today’s decision is that LGBT workers in all 50 states will be eligible to take FMLA leave to care for a same-sex spouse.
For many LGBT workers, equal access to the FMLA is long overdue. Earlier this year, A Better Balance received a call on our legal hotline from Mindy, a worker in Nebraska, whose wife is fighting cancer.* For more than two decades, Mindy has worked for the same large employer, and she was shocked when Human Resources told her she was ineligible for FMLA leave to care for her wife during chemotherapy treatments.
Even though Mindy was legally married in Iowa a few years ago, Nebraska—where she lives—did not recognize her marriage. When we talked to Mindy, LGBT workers were only eligible to take FMLA leave to care for a same-sex spouse if the worker lived in a state that recognized same-sex marriage. Even when the U.S. Department of Labor (DOL) took steps this spring to issue a new FMLA rule to recognize same-sex spouses in all states, four states—including Mindy’s home state of Nebraska—sued to block the FMLA rule. A judge in Texas temporarily blocked the rule from going into effect in these four states, which also continued to prevent Mindy from taking FMLA leave for her wife. The differences among states on same-sex marriage and the eleventh-hour attempt by states like Nebraska to stop the tide of marriage equality underscored the need for the Supreme Court to step in and resolve this issue. Due to today’s decision, Nebraska will not only have a constitutional obligation to recognize Mindy’s marriage (performed in another state) but will have to grant all same-sex couples in Nebraska the right to marry. Going forward, same-sex couples in all 50 states will be able to marry and have their marriages recognized; the fact that they are in a same-sex marriage will no longer be a legal barrier to the use of FMLA leave.
Even though today’s decision will simplify recognition of same-sex spouses under the FMLA, LGBT workers will still have many questions about how the law applies to them: Am I covered? Can I take leave to care for a domestic partner and/or my partner’s child? Can FMLA leave be used for transgender health care? To help LGBT workers and their loved ones navigate these questions, A Better Balance has developed a comprehensive guide to the FMLA for LGBT families.
In addition to celebrating today’s historic decision, it is important to recognize that a significant amount of work remains to fully protect LGBT workers and their loved ones. Here are two examples of what’s next:
1) The Need for Universal Paid Leave Laws with Broad Family Definitions. More than 40% of workers in the U.S. are completely excluded from the FMLA’s protections—due to the size of their employer, their hours worked, or length of employment. Among those workers who are covered by the FMLA, many cannot afford to take unpaid leave. Furthermore, the FMLA’s family definition is narrow—it only allows leave to care for a spouse, parent, or child; domestic partners, parents-in-law, grandparents, siblings, extended relatives, and “chosen” family members are all excluded. It is time for paid family leave laws that support and recognize the diversity of today’s families.
2) The Need for LGBT Employment Nondiscrimination Laws. Mindy, our hotline caller from Nebraska, is fortunate to live and work in a city that prohibits employment discrimination based on sexual orientation. As a result, she was willing to tell her employer about her marriage and request leave to care for her wife. But far too many workers in the U.S. can be fired from their jobs based on sexual orientation or gender identity; federal law does not explicitly prohibit employment discrimination against LGBT workers, and less than half of all states provide such protection. Due to fear of harassment or job loss, many LGBT workers feel they cannot disclose their relationships or caregiving needs. To fully enjoy the FMLA or an employer’s leave policy, LGBT workers must be protected from discrimination based on sexual orientation and gender identity. It is unacceptable and unjust that LGBT workers can marry today and be legally fired tomorrow on the basis of their identity.
Despite these remaining needs, today’s Supreme Court ruling represents an incredibly important step forward. As we mark this progress and celebrate this victory for fairness and equality, let’s also renew our commitment to fight for strong employment nondiscrimination protections and paid leave laws that broadly define family.
* Name and some aspects of story changed to protect anonymity.