Same-sex marriage ruling presents new opportunities for Pennsylvania businesses
May 29, 2014 11:16 PM
Peter Karlovich, right, proposes to his partner of 28 years Steve Herforth, left, in front of the crowd gathered on Ellsworth Avenue in Shadyside to celebrate a federal judge ruling Pennsylvania's ban on same-sex marriage unconstitutional on May 20, 2014.
A crowd gathers to celebrate May 20 on Ellsworth Avenue in Shadyside after a federal judge ruled Pennsylvania's ban on same-sex marriage unconstitutional.
By Kim Lyons / Pittsburgh Post-Gazette
Pennsylvania employers already dealt with the impact of same-sex marriage on their companies last year, after the Supreme Court ruled the federal Defense of Marriage Act was unconstitutional and opened the door to federal benefits for such couples.
Now that same-sex marriage has become legal in the Keystone State, businesses here would be wise to revisit the more subtle issues that define a company’s culture, experts say.
The experts’ bottom line: There is no good business case not to have policies inclusive of LGBT workers, especially in a state like Pennsylvania, which struggles to retain talent.
Jonathan A. Segal, a Philadelphia attorney with the Pennsylvania State Council of the Society for Human Resource Management, said the issue of workplace diversity should not be merely an egalitarian notion. “It’s also a business imperative,” he said. “Any business that excludes a portion of the population is excluding talent.”
Pennsylvania has the dubious distinction of being the only state that has legalized gay marriage but not outlawed discrimination based on sexual orientation.
“Even if companies are ‘allowed’ to discriminate, it is just bad business to do so,” Mr. Segal said, noting 91 percent of Fortune 500 companies have initiated policies barring discrimination on the basis of sexual orientation. Smaller companies would be well-served by following in these successful companies’ footsteps, he said.
If history is any indication, businesses will take the lead even before regulations are brought up to date, said Ted Martin, executive director of advocacy group Equality Pennsylvania. Companies have been far ahead of lawmakers on equality issues so far, and he expects that will continue.
“In a state like Pennsylvania, which hasn't always been at the forefront of economic development, I would think anything you can do to retain and attract a good workforce would help,” he said. Most Northeastern states allow same-sex marriage.
The Supreme Court ruling against DOMA immediately opened the door to more than 1,000 federal provisions that rely on marital status to determine benefits and other rights, including Social Security benefits and veterans’ benefits.
The Internal Revenue Service and the Employee Benefits Security Administration both adopted “state of celebration” approaches to their procedures. This means that if a same-sex couple marries in a state where such marriages are recognized, for federal tax and employee benefits purposes the couple is considered married even if they live in a state that does not recognize same-sex marriages.
In addition, the recent Pennsylvania decision extended to same-sex couples the protection of the Family Medical Leave Act; if an employee needs time off from work to care for an ill spouse, she would receive the same benefit whether her spouse was male or female.
A company that does not think it has any lesbian, gay, bisexual, transgender workers still needs to be clear about what its culture is, because non-LGBT employees — and customers of all sorts — will take note, Mr. Segal said.
Mark Phillis, a shareholder in the Pittsburgh office of Littler Mendelson, said he encourages companies to evaluate policies and benefits plans, as well as vacation policies, to be sure they are inclusive. “Make sure language is gender neutral,” he said.
He pointed to the “Cost of the Closet” report released this month by the Human Rights Campaign Foundation. It surveyed 800 LGBT workers across the country, and found 53 percent hide their sexual orientation in the workplace. The top reasons included the possibilities of being stereotyped and of losing connections or relationships with co-workers.
Knowing that this level of uncertainty may still exist for LGBT employees, companies should set a clear tone, Mr. Phillis said.
“When you do harassment training, for instance, does it involve examples of what would be inappropriate comments against gays and lesbian employees?” he said. “That sends a very clear message to an employee who might be worried — that this company understands and wants me to feel comfortable at work.”
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