Question: Can we ask for marriage licenses from same-sex couples only?
Answer: At this time, it is generally considered a best practice to be consistent when asking for specific documentation of marriage from all employees who notify you they are married, and not just same-sex marriages. Singling out employees with same-sex partners or spouses raises discrimination issues, could create an unfavorable workplace culture, and could possibly damage your company’s reputation. While federal courts have differed in their opinion about whether sexual orientation is protected under Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC) interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. Furthermore, certain state and local governments have enacted laws to protect employee discrimination on the basis of sexual orientation. Therefore, employers may be vulnerable to discrimination claims under Title VII and/or may violate state or local antidiscrimination laws if they treat same-sex married couples differently than opposite-sex married couples.
Additionally, if an employee intends to enroll his or her spouse in your group health plan (such as a medical or dental plan), then, unless any employment policies, carrier documents, or plan documents require specific documentation, you may rely on an employee’s certification that the individual is the employee’s legal spouse. You cannot use a different approach for requiring documentation for employees with same-sex spouses for now.
Finally, if you ask for a marriage license from an employee in order to update employment documentation (such as a W-2 or Form I-9) because of a name change due to marriage, you should request this documentation from all employees with name changes.