Same-sex couples’ workplace rights after DOMA’s (partial) demise

On the final day of its 2012 term, the U.S. Supreme Court ruled in United States v. Windsor that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. The ruling paves the way for same-sex couples, married in states that allow or recognize their marriage, to enjoy more than 1,000 federal rights and protections. Some of those protections include private-sector workplace rights for married couples. Employers must now evaluate their policies to determine which workplace benefits and protections must be extended to same-sex married couples.

Making sense of the ruling

The Defense of Marriage Act contains two key provisions. Section 3, the provision reviewed by the court, states that the word “marriage” only means a legal union between one man and one woman, as husband and wife, and that the word “spouse” only refers to a person of the opposite sex who is a husband or wife.

Section 2 is the other key provision. It was not challenged in the Windsor case but it will greatly affect marital rights available to same-sex spouses. Section 2 is also likely going to be the next front in securing equal rights for same-sex marriages because it allows states to refuse to recognize same-sex marriages performed under the laws of other states.

DOMA did not forbid states from permitting same-sex marriages or providing state benefits to those couples. Domestic relations is an area traditionally regulated by each state. The Windsor ruling reinforces a state’s primary role in regulating marriage. However, the U.S. Constitution does impose some limits, such as prohibiting states from limiting marriage based on race.

Currently, 13 states plus the District of Columbia recognize same-sex marriages. Section 3 of DOMA prevented the federal government from recognizing these marriages for purposes of federal rights and protections, and thus deprived those couples of rights enjoyed by other married couples in these states. In the employment context, some of these deprivations resulted in the payment of taxes on employer-provided health care, potential loss of health care benefits continuation under COBRA and first priority rights to a spouse’s pension or other retirement plan, and the inability to use the Family Medical Leave Act to care for a spouse with a serious health condition.

The court ruled that DOMA’s Section 3 interfered with rights all married couples within a state would enjoy and, therefore, it was an unconstitutional deprivation of liberty protected by the Fifth Amendment to the U.S. Constitution. The court’s ruling is very specific — the federal government cannot interfere with the marital rights enjoyed by married couples of a state. Thus, it is up to each state to allow same-sex marriage or recognize a same-sex marriage legally entered into elsewhere. As an example, Edith Windsor and her partner married in Ontario, Canada, and the state of New York recognized the validity of that marriage.

Federal employment protections for married couples after Windsor

The court’s decision means private-sector employers in the jurisdictions that recognize same-sex marriages should ensure their employment policies do not limit federal rights and benefits available to spouses. Some major federal employment laws covering spouses include:

1. Title VII of the Civil Rights Act of 1964: Title VII prohibits employment discrimination. An employer violates Title VII by taking adverse employment action against an employee whose spouse opposes unlawful practices, participates in proceedings, or requests accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability.

There are two other possible concerns under Title VII for private-sector employers that are not religious institutions. The first is discrimination based on sexual stereotyping, where an employee in a same-sex marriage suffers adverse employment actions by not conforming to traditional gender roles, such as marrying a person of the opposite gender. The second is religious discrimination, which can arguably occur when an employer takes adverse action against an employee because of a belief that same-sex marriage violates the employer’s religious tenets.

2. Americans with Disabilities Act: The ADA prohibits discrimination based on the fact that a person is disabled, is perceived as disabled, or is associated with a person with a disability. An employer may violate the ADA through adverse employment decisions imposed because an employee’s spouse is disabled.

3. COBRA: COBRA provides former employees, retirees, spouses, former spouses, and dependent children the right to temporary continuation of health coverage at group rates.

4. ERISA: ERISA regulates employee benefit plans. ERISA requires plan administrators to comply with state domestic relations laws that award all or part of a participant’s benefit in the form of child support, alimony, or marital property rights to an alternative payee (such as a spouse or former spouse).

5. Consumer Credit Protection Act: The CCPA protects employees from discharge because their wages have been garnished. The act allows up to 50% of an employee’s disposable earnings to be garnished for child support if the employee is supporting a current spouse or child who is not the subject of the support order and up to 60% if the employee is not doing so. An additional 5% may be garnished for support payments over 12 weeks in arrears.

6. The Family Medical Leave Act: Employees are entitled to 12 weeks of protected leave to care for a spouse with a serious health condition. In addition, they are entitled to continuation of group health benefits and reinstatement. The law also allows up to 26 weeks of leave to care for a spouse who is a member of the armed forces. (See the discussion below on special problems for same-sex couples who reside in states that have not recognized same-sex marriages.)



What happens in states like Wisconsin that do not recognize same-sex marriage?

Suppose a same-sex couple marries in Minnesota, where same-sex marriages will be recognized starting Aug. 1. If the couple then comes back to Wisconsin for work, will their employers have to treat them as married or as single? Currently, Wisconsin does not recognize same-sex marriages. Section 2 of DOMA allows Wisconsin to refuse to recognize same-sex marriages from other states. Thus, a troubling question arises as to whether same-sex married employees must be treated as single or married, especially for employer obligations under federal law.

Private-sector employers can avoid the confusion to some degree by avoiding the question; just treat those employees as married for purposes of federal rights and benefits. However, such an approach may not be ideal from a cost or planning perspective. Take family medical leave as an example. An employee in a same-sex marriage may be entitled to 26 weeks of leave to care for an armed services member. While the employer can voluntarily opt to provide the benefit, perhaps the employer does not want to reinstate the employee. At that point, it would be beneficial to know whether reinstatement is obligated under FMLA, otherwise the employer risks a lawsuit and liability under that law.

One way to resolve the confusion would be to look at each relevant law and its definition of a “spouse.”

The FMLA Insights blog reports that the FMLA regulations look to a person’s state of residence to determine whether someone is a covered spouse. Thus, for the moment, a Wisconsin employer may not have to provide FMLA leave or FMLA rights to a same-sex married employee. However, for planning purposes, it would still be worth exploring whether an employee may drag the employer into an FMLA lawsuit and argue that after the Windsor case, the regulation’s residency limitation is invalid.

A quicker resolution will likely come from the Obama administration, which refused to defend DOMA’s constitutionality on appeal. A recent SHRM article reports that the president can either issue an executive order or instruct federal agencies to recognize spouses based on where the marriage occurred. That certainly seems to be a more sensible option than having federal rights appear or disappear based on where an individual is traveling or residing.

However, this solution would be limited to a federal agency’s interpretation of a law or to changes in federal regulations. Congress or the courts will need to step in to remedy exclusions when the text of a statute binds spousal rights to the state where the spouse resides.

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