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Same sex marriage and the global employer

By - - Discrimination, Same sex marriage

In the West, the trend towards full recognition of same sex marriage is accelerating. When one remembers that homosexuality was a crime in the UK until 1967 and only fully decriminalised in the US in 2003, the speed of the cultural shift has been remarkable.  Attitudes in Asia have not moved so fast and in the Middle East, primarily for religious reasons, are unlikely to move at all.

This has a number of implications for the global employer not least of which might be the growing challenge of managing the tension between same sex marriages and employees with strong religious beliefs. How might this play out at work particularly given increasing employee mobility within global organisations?

In Europe, for instance, the courts are now grappling with issues such as the extent to which a devout Christian has the right to express in the workplace his or her strongly held convictions on same sex marriage.  

There follows a snap shot of the latest global developments in this area, the implications for global employers and the steps they should consider in anticipation of this trend. 

Americas

In the US where marriage is regarded as a matter of State law, a recent ruling of the Supreme Court stated that the Federal law known as the Defence of Marriage Act (which defined marriage as requiring a man and a woman) was unconstitutional. The reason it was unconstitutional was that it violated the principle of “equal liberty” written in to the constitution by the Fifth Amendment. This ruling has far reaching consequences within the US. It requires the Federal law to treat all married couples equally, including same sex married couples, whether or not that marriage is recognised at State level. 

Europe

Currently 22 of the 55 countries of Europe recognise some form of same sex union, among them the majority of members of the EU.  However, despite several steps in that direction, currently there is still no recognition of same sex partnerships at the EU level.  The British judge who heads the European Court of Human rights has said that he is ready to declare same sex marriage a “human right” as soon as enough countries fall in to line.

The Netherlands was the first country to recognise same sex marriage. They have been joined by Sweden, Portugal, Spain and France.  The UK and several other countries are considering doing so. There is no European country where the matter is not under debate and the direction of travel is clear even if the speeds are variable.

Far East 

There is more limited recognition of same sex marriages in the Far East but there is movement in that direction. In China, while same sex unions remain unrecognised there have been 4 attempts in the last 10 years to introduce same sex marriage legislation and the campaign continues. The Nepalese government has been debating legislation permitting same sex marriage but progress has been delayed by elections. Neither India nor Malaysia recognises same sex marriage and, in the latter case, sodomy remains a criminal offence.  Japan has yet to take any serious steps to recognise same sex unions.

Implications for the global employer

The global employer needs to watch out for the following issues as the trend towards same sex recognition continues (as it will) :

  • Pensions: entitlements could extend to same sex “spouses”, potentially retrospectively without limit.
  • Employee benefit entitlements (particularly those dependent on marital status): should these, or must these, be extended to same-gender spouses?
  • Mobility: entitlements relating to accompanying spouses should now include same gender spouses.
  • Discrimination: any attempt by an employer to treat same sex partners differently would risk contravening discrimination rules in countries where such rules apply.
  • Employee attitudes: there is a constant risk in the work environment about the attitude and beliefs of other employees (in particular those who have strong religious beliefs) towards same sex marriages – it is still a very contentious subject. The global employer will need to consider how to manage these changing social attitudes in its work environment, in particular because it may be liable for any adverse comments made, or less favourable treatment given, by one employee to another on the grounds of same sex marriage.  
  • Tax: there may be local tax implications which need to be understood.

What should global employers do?

  • Acknowledge the trend and plan accordingly.
  • Monitor legal changes, particularly in Europe where the law on this subject is developing quickly  
  • Recognise that there may be a growing divergence of attitude in different regions, creating challenges for HR consistency across a global business.
  • Review existing terms and conditions particularly with regard to definitions of “spouse” and “marriage”
  • Ensure that employee benefit entitlements do not discriminate and meet the needs of the business in the new environment
  • Consider training for employees on same sex marriage and the new rules to ensure that they are understood and that any adverse comments or treatment on the grounds of same sex marriage are not tolerated   
  • Take local jurisdiction advice on tax issues and compliance 
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