U.S. Supreme Court Ruling in Windsor Striking Down DOMA Will Expand Workplace Protections for Employees in Legally Recognized Same-Sex Marriages
The U.S. Supreme Court issued a critical decision on June 26, 2013, striking down a provision of the Defense of Marriage Act (“DOMA”) that limited the definition of marriage for federal purposes to unions of opposite-sex couples. The Court’s ruling in United States v. Windsor will have far-reaching implications for employers, at least in those states that recognize same-sex marriages, in terms of leave administration, benefits eligibility and workplace protections. In another case decided the same day, Hollingsworth v. Perry, the Court let stand a Federal District Court ruling in California that an amendment to the California Constitution limiting marriage to opposite sex couples was unconstitutional. In neither case did the Court require all states to recognize same-sex marriages.
In Windsor, a 5-to-4 decision, the Supreme Court affirmed the ruling of the Second Circuit Court of Appeals that the provision of DOMA excluding a same-sex husband or wife from the definition of spouse is unconstitutional and violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution. The Due Process Clause, among other things, prohibits the federal government from denying to any person the equal protection of the law. Writing for the majority, Justice Kennedy found that Section 3 of DOMA, which defines “marriage” and “spouse” as limited to heterosexual couples, violates the Equal Protection Clause.
DOMA’s definition of marriage in Section 3 affects numerous federal laws, regulations and directives that implicate marital or spousal status. All federal laws and regulations that were governed by DOMA’s definitions of marriage and spouse are impacted by the Court’s ruling. The Court’s decision in Windsor may also impact the debate over same-sex marriages in the states that currently do not recognize such marriages.
Although Windsor is not an employment law case, it appears that the Court’s ruling will impact the employer-employee relationship and employment-related benefits for individuals in lawful same-sex marriages who reside in states that recognize such marriages.
Some examples of how such employees will be affected are:
- The Family and Medical Leave Act (“FMLA”) provides for job-protected leave in part to care for a spouse with a serious health condition. Based on the definition of “spouse” under DOMA, providing leave to care for a same-sex spouse was not legally required. In light of Windsor, however, FMLA leave now includes leave to care for a spouse in a legally recognized same-sex marriage.
- When an employer provides health benefits, a terminated employee may continue health benefits for his or her spouse and the spouse’s children through COBRA -- a federal mandate. That mandate will now apply to spouses and their children in legally recognized same-sex marriages.
- Under the Employee Retirement and Income Security Act (“ERISA”), which governs 401(k) plans and other retirement and health plans, a surviving spouse is the default beneficiary of a deceased’s employee’s vested plan benefits. To distribute such benefits to someone other than the surviving spouse requires the spouse’s written consent. In the absence of such spousal consent, a spouse in a legally-recognized same-sex marriage will now be entitled to the benefits.
- Employer-provided medical benefits to spouses in legally-recognized same-sex marriages will no longer be considered taxable income and, thus, employers must change any written guidance that advises to the contrary.
Notably, the Court’s decision left intact Section 2 of DOMA, which provides that states are not required to recognize same-sex marriages legally entered in other jurisdictions. Thirteen states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington) and the District of Columbia currently recognize or will soon recognize same-sex marriages. Employers and employees in same-sex marriages in the 37 states that do not currently recognize same-sex marriages (some of which recognize same-sex civil unions or domestic partnerships) face continued legal uncertainty regarding the application of federal laws that reference marriage or spouses. Employers with operations in multiple states, some of which recognize same-sex marriages, some of which recognize civil unions (including New Jersey) and some of which do not recognize either, will face particular challenges determining how to modify their benefit plans and workplace policies.
In light of the Windsor decision, employers should carefully review with counsel their benefit plans and workplace policies that concern federally-mandated benefits and obligations and/or involve the marriage relationship. Where federal law differs from state law in terms of benefits, leave and workplace protections, employers will need to consider the state implications as well.
Attorneys in the Gibbons Employment & Labor Law Department will be monitoring further developments in this area of law as the federal government and courts review federal statutes and regulations in light of the Windsor ruling, and are available to counsel employers on these issues.
Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department. Richard S. Zackin and Kristin D. Sostowski, Directors in the Gibbons Employment & Labor Law Department, co-authored this post.