The impact on most employers should be minimal.
As you've probably heard, President Biden has recently signed into law two measures that could affect employers: The Speak Out Act, and the Respect for Marriage Act.
For most employers, I suspect that these laws will not require much adjustment. But the impact of the Respect for Marriage Act on religious employers (at least, those with traditional beliefs about men, women, and marriage) is not entirely clear.
Speak Out Act
Let's start with the easier one. The Speak Out Act was signed into law last week. It declares unenforceable any non-disclosure or non-disparagement provision in a pre-dispute agreement when the dispute pertains to sexual assault or sexual harassment. It is not limited to employers, but this post will focus on the impact on employers and businesses that use independent contractors.
Non-disclosure or non-disparagement provisions will still be enforceable if they were part of a settlement or release agreement entered into after a dispute arose. The unenforceability applies only to pre-dispute agreements, such as an agreement that an employee might sign at the time of hire.
"Sexual assault" is defined as "a dispute involving a nonconsensual sexual act or sexual contact" per federal, state or tribal law, "including when the victim lacks capacity to consent." "Sexual harassment" is defined as "conduct that is alleged to constitute sexual harassment" under the federal, state, or tribal law that applies.
The Speak Out Act also affirmatively provides that employers can continue to protect their trade secrets and proprietary information.
Employers who require employees, and businesses that require independent contractors, to sign agreements at the start of the relationship -- or at any time before there is an actual dispute -- will need to realize that the non-disparagement and non-disclosure provisions of those agreements will not be enforceable if the employee or contractor later alleges sexual assault or sexual harassment. Last March, Congress enacted a similar law providing that pre-dispute arbitration clauses are unenforceable with respect to sexual assault or sexual harassment claims.
Respect for Marriage Act
The Respect for Marriage Act, which repeals the 1996 Defense of Marriage Act, essentially says that any marriage between two individuals must be given "full faith and credit" in every state as long as the marriage was legal where entered into -- without regard to the sex, race, ethnicity, or national origin of the spouses. "State" is defined broadly to include the 50 states, the District of Columbia, Puerto Rico, and any U.S. territory.
(In the case of a marriage entered into outside the U.S., D.C., Puerto Rico, or a U.S. territory, the marriage also has to be legal where entered into and in the U.S. jurisdiction where the married people are seeking their rights.)
In essence, the Respect for Marriage Act codifies the U.S. Supreme Court decision in Obergefell v. Hodges, in which the Supreme Court recognized a right to same-sex marriage. As far as interracial marriages are concerned, it codifies the 1967 Supreme Court decision in Loving v. Virginia.
(It also appears to be a response to the concurring opinion of Supreme Court Justice Clarence Thomas in Dobbs v. Jackson Women's Health Organization, in which he indicated that the validity of Obergefell should be revisited.)
In the employment context, the RMA generally means that employers cannot discriminate against persons in same-sex (etc.) marriages and must offer the same employment benefits that would be available to opposite-sex or same-race (etc.) spouses. In my experience, most employers have done this with same-sex spouses since Obergefell, if not before, and with mixed-race/ethnicity spouses for my entire career, so all they'll have to do now is keep on keepin' on.
With one possible exception: Religious employers may (or may not) need to watch out. The law makes a specific exception for religious and religiously-affiliated organizations and their employees who refuse to provide services related to the "solemnization or celebration of a marriage." In other words, a religious organization clearly has the right under the law to refuse to participate in, or assist in, a same-sex marriage on religious grounds.
However, the statute does not make specific exceptions for any other "conscientious objections" that may arise -- for example, a religious school that does not hire teachers in same-sex marriages because those marriages violate the tenets of the faith. The U.S. Conference of Catholic Bishops, for one, says this is a problem.
On the other hand, the statute does say this: "Nothing in this Act, or any amendment made by this Act, shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law." So maybe religious employers can rest easy?
One more thing for the Supreme Court to sort out for us, I guess.
- Partner
Robin has more than 30 years' experience counseling employers and representing them before government agencies and in employment litigation involving Title VII and the Age Discrimination in Employment Act, the Americans with ...
Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act).
Continue Reading
Subscribe
Contributors
- William A. "Zan" Blue, Jr.
- Obasi Bryant
- Kenneth P. Carlson, Jr.
- James M. Coleman
- Cara Yates Crotty
- Lara C. de Leon
- Christopher R. Deubert
- Joyce M. Dos Santos
- Colin Finnegan
- Steven B. Katz
- Ellen C. Kearns
- F. Damon Kitchen
- David C. Kurtz
- Angelique Groza Lyons
- John E. MacDonald
- Alyssa K. Peters
- Sarah M. Phaff
- David P. Phippen
- William K. Principe
- Sabrina M. Punia-Ly
- Angela L. Rapko
- Rachael Rustmann
- Paul Ryan
- Piyumi M. Samaratunga
- Robin E. Shea
- Kristine Marie Sims
- David L. Smith
- Jill S. Stricklin
- Jack R. Wallace
Archives
- November 2024
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011
- December 2010
- November 2010
- October 2010