Absolutely nothing! … to contractors that is … but to employers … a different answer.


Okay, so the Supreme Court recently ruled that state laws banning same sex marriage are unconstitutional under the 14th Amendment to the United States Constitution.

You may have your own personal opinion against or in support of the Supreme Court’s decision—that’s not the point of this post today. While the holding does not directly implicate employers or their policies, the ruling clearly means that persons legally married in any state, regardless of their gender, are entitled to the benefits of marriage in any other state in the union and that a state can no longer refuse to issue marriage licenses to persons based on their gender:

The Court, in this decision, holds same‐sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same‐sex marriage performed in another State on the ground of its same‐sex character. (Slip op. at 28).

So what? While the decision focuses on same sex marriage bans across the states, there are a few issues to be mindful of as an employer in the construction industry (or in any industry for that matter).

First, you may want to re-examine benefit policies to be sure that same‐sex married couples are not discriminated against.  Also, remember that the decision highlights the trend of extending constitutional protections to gay, lesbian, bi‐sexual, and transgendered persons. Arguably, there remains a debate about whether sexual orientation is a protected class (one side versus the other side).

Second, and more important, since harassment of persons due to their sexual orientation is considered to be sexual harassment prohibited by Title VII (and because the ruling in the same‐sex marriage case may be a topic of conversation in your workplace), it may be a good opportunity for employers to remind their supervisors that the company will not tolerate harassment based on sexual orientation and will not tolerate harassment based on sexual orientation between co‐workers either.

Special thanks to Clark Spoden, one of my partners who specializes in labor and employment law, for his contribution to this post.