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Get Ready for EEOC Activity on Sexual Orientation and Transgender Sexual Discrimination Charges

The Equal Employment Opportunity Commission (“EEOC) has begun pursuing in earnest charges and lawsuits based on “sex discrimination” under Title VII for sexual orientation and transgender discrimination.
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5 Essential Estate Planning Basics for Same-Sex Couples & LGBT Individuals

Last week, hundreds of Pride events took place across our nation to celebrate and support the LGBT community. In reflection of Pride Week, let’s discuss the necessity of estate planning for LGBT individuals and couples. 

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Employers Gear Up For Changes In Treatment Of Same-Sex Spouses After Supreme Court Ruling

The United States Supreme Court issued its landmark ruling Friday, June 26, 2015, in Obergefell v. Hodges, holding that the U.S. Constitution guarantees a right to same-sex marriage. Read the Court's full opinion here

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Texas Employers — FMLA Same-Sex Rule Put on Temporary Hold

Just the day before the new DOL rule was to go into effect extending FMLA coverage to same-sex couples in Texas (and everywhere else) if the marriage was legally recognized in the state of celebration, a Texas federal court enjoined enforcement of the rule until further hearing.  The federal case is Texas v. United States of America, No. 7:15-cv-00056 (N.D. Texas 2015).

Four States Challenged New Definition of “Spouse” By DOL

Texas, Arkansas, Louisiana and Nebraska attorneys general sought an injunction, challenging the DOL rule’s revised definition under FMLA of “spouse”, which would look to the law where the marriage was performed for the definition of a legal “spouse”, not the state of the employee’s residence. 

Injunction Not In Effect Everywhere 

Because only the four named states were plaintiffs in the Texas lawsuit, the preliminary injunction only applies in those states for now.  Because same-sex marriage is not legally recognized in those states, employees in those states cannot claim the same-sex spouse FMLA leave benefits.

Employers Can Turn the Clock Back Again in Texas For Now

So, until resolution of this case, or action by the U.S. Supreme Court regarding whether the 14th Amendment requires states to allow marriage between two people of the same sex, the new FMLA rule granting FMLA rights to same-sex spouses of employees is put on hold.  Many believe the Supreme Court will find that states must allow same-sex marriage in the pending challenge when it rules later this summer.  That would render this issue moot under FMLA and the new rule would be effective again.
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Rules Are Going To Change For Texas Employers On FMLA Treatment Of Same-Sex Spouses

A soon to be effective U.S. Department of Labor (DOL) revision to the Family and Medical Leave Act (FMLA) regulations’ definition of “spouse” will change how Texas employers have to respond to same-sex-spouse-related leaves.  

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Supervisor Illegally Harasses Iron Worker Based on Gender Stereotypes

The Fifth Circuit Court of Appeals, which governs courts in Texas, Louisiana and Mississippi, joined many other federal courts recently in holding discrimination or harassment can be based on whether an employee conforms to a gender or sex stereotype.  Title VII of the Civil Rights Act prohibits such conduct.  The Court upheld a jury verdict in favor of a male iron worker whose supervisor thought he acted “kind of gay” and “feminine.” The supervisor used very foul language toward the employee, called him derogatory names with graphic descriptions daily, and simulated sex acts from behind the employee on a regular basis. When the employee was laid off, the EEOC took on his case against the employer for discrimination/harassment/retaliation.
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Are Same-Sex Marriages Treated Equally for Federal Tax Purposes?

Employers must treat same-sex marriages like other marriages for Federal Tax purposes.

IRS Ruling Affecting Employers

The IRS has issued a ruling ( IRS Revenue Ruling 2013-17 ) that employees who were legally married in places that recognize same-sex marriage are entitled to the same federal tax treatment as traditional married employees, regardless of whether the state in which they live or are employed recognizes the marriage as legal.  This means any tax issue that is related to marital status, such as exemptions claimed (personal and dependents), filing status, claiming standard deduction, treatment and provision of employee benefits, and IRA contributions.  
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New Requirements and Considerations in Applying FMLA to Same Sex Couples

The U. S. Supreme Court ruled recently that the portion of the Defense of Marriage Act (DOMA) which denied recognition of marital status to couples of the same sex under federal law was unconstitutional. This ruling expands potential FMLA coverage as a result to same sex spouses. Employers will have to fine tune administration of FMLA leave to determine whether leave related to a same sex spouse issue should be granted. The employer will have to grant FMLA leave to an employee for legitimate, covered requests for a same sex spouse, if the affected employee resides in a state that recognizes same sex marriage.

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