Employment Rights and Obligations After the Death of DOMA

Same-sex marriages are now recognized under federal laws, including employment laws.

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When the Supreme Court struck down part of the Defense of Marriage Act (DOMA), many same-sex spouses immediately gained a number of new rights and responsibilities. In the employment field, these rights stem primarily from the tradition of granting an employee’s spouse access to benefits. What the Supreme Court decision did not do, however, is protect LGBT employees, whether married or not, from workplace discrimination.

The End of DOMA

The Supreme Court case was not about employment, but about the federal estate tax. In the case, Edith Windsor was presented with a federal estate tax bill of more than $300,000 when her wife died. Had Ms. Windsor been married to a man, she would have owed no tax when his estate passed to her as the surviving spouse on his death. But, because DOMA defined marriage for all federal law purposes as a union between one man and one woman, the IRS could not treat Ms. Windsor’s Canadian marriage to her wife, also recognized in their home state of New York, as valid.

The Supreme Court’s decision struck down the “one man and one woman” language in DOMA. As a result, legally valid same-sex marriages (that is, marriages performed in states or countries where same-sex marriage is recognized) will be treated as marriages by the federal government. This is going to have huge consequences in a variety of contexts touched by federal law, from green cards and bankruptcy cases to tax filings and estate planning. (For more information on how the Windsor case affects other legal rights and responsibilities, see The Supreme Court's DOMA Decision.)

However, the Court did not strike down DOMA’s provision allowing states not to recognize same-sex marriages performed outside their borders. This means, for example, that a legally married same-sex couple from Massachusetts who move to Arizona would have a federally recognized marriage, but Arizona would not have to treat them as married.

Employment Law Changes

There are several ways employment rights and obligations will be changed by the DOMA decision. Federal employment laws that refer explicitly to “spouses” will now include same-sex spouses. Employer policies and practices that include spouses should now also encompass same-sex spouses. And, we can expect legal challenges under Title VII to employers that discriminate against employees based on their marriage to a same-sex partner.

FMLA, COBRA, and Other Federal Laws

Federal laws that reference the spouses of employees now include same-sex spouses. For example:

  • The Family and Medical Leave Act (FMLA) allows eligible employees to take time off to care for a seriously ill family member, care for a new child, attend to pressing practical matters relating to a family member’s military service, and care for a returning family member who suffered serious injury during military service (among other things). Previously, the FMLA’s family rights did not extend to same-sex spouses. Now, they do. If an employee’s same-sex spouse has a child or needs care for a serious illness, for example, the employee is entitled to FMLA leave.
  • The Consolidated Omnibus Budget Reconciliation Act (COBRA) requires employers to offer continuing group health benefits for employees and their dependents after an event that would otherwise cut off those benefits. Typically, COBRA comes into play when an employee is laid off or fired. Under COBRA, the employee and any dependents covered by the employer’s group health plan are entitled to continue their benefits, at their own expense, for 18 to 36 months. COBRA also allows dependents to continue benefits that would otherwise be cut off by the employee’s death or divorce. All of these rights now also accrue to same-sex spouses who are covered by the employer’s health plan.
  • Other federal laws that apply to employee spouses will also cover same-sex spouses. For example, a spouse must consent to an employee’s decision to name someone else beneficiary of his or her 401(k) plan. This veto right will now extend to same-sex spouses, too.

Changes Based on Employer Policies

In some areas, employers have the leeway to include or exclude spouses. For example, an employer does not currently have to offer – or subsidize – health benefits to employee family members. However, an employer that makes benefits available to employee spouses will have to make those benefits available equally to same-sex and opposite-sex married couples.

Prior to the Supreme Court’s decision, employers who provided benefits to same-sex spouses had to report the cost it paid for those benefits as income imputed to the employee – and the employee had to declare that income and pay tax on it. This is no longer the case. Now, employers and employees alike can treat benefits for same-sex spouses like benefits for opposite-sex spouses; the money the employer pays is not reportable or taxable to the employee.

What Will Happen Under Title VII?

Title VII of the Civil Rights Act of 1964 is the primary federal law that prohibits employment discrimination. Title VII does not (yet) explicitly prohibit discrimination based on sexual orientation. In every Congressional session, legislation is introduced to remedy this omission. However, the Employment Nondiscrimination Act (ENDA), the title given to Congressional bills to outlaw sexual orientation discrimination, has not passed to date.

Courts have largely agreed that Title VII’s prohibition on sex discrimination extends to discrimination based on stereotypes about how men and women should act and appear. For example, the Supreme Court held that a woman who was denied partnership at an accounting firm after being told that she was too aggressive, needed to wear more make-up and act more feminine, and needed a “course in charm school,”  had a claim for sex discrimination based on stereotyping. Some courts have also held that men who are harassed by their coworkers for being “effeminate” might also have a sex discrimination claim.

Most courts that have allowed sex-stereotyping claims under Title VII have taken pains to point out that they are not extending Title VII to cover sexual orientation, even if the employee is gay and/or the mistreatment is unmistakably tinged with homophobia. However, it’s hard to avoid the conclusion that discrimination based on sexual orientation depends in large degree on stereotypes about how men and women should act – more specifically, that men should date, love, and marry women and vice versa.

The Supreme Court’s DOMA decision will likely lead to more challenges like these under Title VII, claiming that an employer treated an employee in a same-sex marriage differently than it treats employees who are married to someone of the opposite sex, or that an employee was harassed based on his or her marriage to a same-sex partner. It remains to be seen whether these challenges will be successful.

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