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In June 2015, the US Supreme Court issued its long-awaited opinion in Obergefell v Hodges, declaring that bans on same-sex marriages are unconstitutional and legalizing same-sex marriage in every state.  In a 5-4 opinion, Justice Anthony Kennedy wrote “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and the Equal Protection Clauses… couples of the same sex may not be deprived of that right and that liberty.”  In light of this decision, school districts across the Commonwealth should review their policies and benefit coverages as they pertain to employee families.  This article will touch briefly on some of the areas requiring attention.


Under the Family and Medical Leave Act (FMLA), school districts with more than 50 employees must give eligible employees unpaid leave to “care for a spouse, son, daughter, or parent who has a serious health condition.” In the FMLA context, the US Department of Labor previously defined spouse as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.”  With the Obergefell decision, state laws limiting same-sex marriage are no longer applicable and a spouse is to be defined in accordance with federal law and must be treated as such for FMLA purposes.  This may require School Districts to amend existing FMLA policies or reconsider the application of contact terms.


School districts which provide bereavement leave for the death of a spouse or an in-law relative should consider updating their policies to reflect same-sex spouses and their family members. Supervisors who administer those policies should also be made aware of these revisions. Any other leaves which reference family affiliations must be updated in light of the Obergefell decision.  Many of these leaves are also included in collective bargaining agreements.  Contract terms should be reviewed to determine if revisions are needed to bring them into compliance with the Obergefell ruling.  This will require entering into appropriate memorandums of understanding with the local unions.


If your school district offered benefits to same-sex domestic partners, you may decide to now eliminate that category of benefits. By doing so, unmarried opposite-sex couples could also be affected.

While Obergefell eliminates the uncertainty as to who qualifies as a spouse, it complicates the domestic partner issue.  School districts offering domestic partner coverage must rethink who qualifies as an eligible domestic partner.  School districts considering elimination of domestic partner benefits need to consider whether equal protection issues may arise if a school district covers same-sex domestic partners but not opposite-sex domestic partners.


22 states and Washington, D.C. recognize a right of action for discrimination based on sexual orientation and gender identity.  However, Pennsylvania is not currently included among those states.  Further, although federal legislation has been introduced in the past seeking to prohibit sexual orientation discrimination, current federal laws do not explicitly recognize sexual orientation as grounds for a discrimination claim.

Federal courts that have addressed the issue are split on whether sexual orientation or gender identity discrimination is prohibited under Title VII’s ban on sex discrimination. A number of federal district courts have recognized sexual orientation discrimination as illegal sex-based discrimination.  However, the Federal Third Circuit Court, which includes Pennsylvania, in its 2001 decision in Bibby v Phila. Coca Cola Bottling Co. has expressly declined to recognize sexual orientation-based adverse employment actions as a potential form of sex discrimination.

The Obergefell decision will likely trigger additional litigation asserting claims of discrimination based on sexual orientation.  Although the Supreme Court has not considered whether sexual orientation falls under the purview of sex-based discrimination, the trend in Supreme Court decisions has been to extend recognition of rights to same-sex couples.  Therefore, it is likely the Court will recognize sexual orientation as a potential basis for sex discrimination.  It is also possible that the Legislature will act first to recognize sexual orientation as a stand-alone protected category.

Rather than becoming the first case to litigate the issue, the safest practice for school districts is to avoid treating any employee differently based on sexual orientation.

Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.