Employers Required to Provide Same Sex Spouses Same Benefits It Offers Opposite Sex Couples

In a landmark decision, the California Supreme Court recently granted same-sex couples the right to marry, In re Marriage Cases, No. S147999 ( Cal. May 5, 2008). In addition to the right to marry, the Court’s decision grants equal treatment under the law to married same-sex couples and married opposite-sex couples.

 

The most immediate impact on employers is that same-sex couples must have access to many employment benefits that have traditionally been given to married heterosexual couples. The decision went into effect on June 14, 2008.

The California Supreme Court in In re Marriage Cases did not invalidate the domestic partner law, but instead extended the rights and responsibilities granted to married heterosexual couples under California law to married gay and lesbian couples.

Therefore, an employer must now provide same-sex spouses with any benefits that the employer provides to opposite-sex spouses under state law or employer policy.

Examples of state law employment policies that must now extend to same-sex spouses are leaves to care for a spouse and any coverage provided by an insurance policy an employer purchases in California. Examples of possible employer policies that must now extend to same-sex spouses are leaves of absence offered beyond those provided under state law and paying for travel for spouses of employees. An employer who fails to provide spousal benefits to same-sex spouses may be exposed to claims of sexual orientation discrimination under California’s Fair Employment and Housing Act.

Although the In re Marriage Cases decision permits same-sex marriage in California, and grants state law rights to same-sex couples, tension remains between that ruling and applicable federal law. Under the Defense of Marriage Act (DOMA), enacted in 1996, a California same-sex spouse does not qualify as a spouse under federal law. Therefore, benefits covered by federal law, such as ERISA retirement plans subject to the Internal Revenue Code, will not automatically apply to a same-sex spouse. However, the DOMA does not prevent an employer from voluntarily extending coverage to same-sex spouses.

Employers should take active steps to ensure that their policies are in compliance with state law regarding same-sex marriage:

1. First survey all employment policies and benefits provided under state law or employer policy to determine if they provide rights or benefits to an employee’s spouse. If so, the employer should ensure that those benefits are also provided to same-sex spouses or domestic partners.

2. You should also carefully review federally-regulated benefits, such as ERISA benefit plans, in order to determine to what extent the employer should extend those benefits to same-sex spouses or domestic partners.

Reproduced with the permission of the Author, HR Network www.hrnetworkinc.com

Tredway, Lumsdaine & Doyle, LLP., has a team of attorneys ready to help you with your employment matters. For more information on how we can be of service to your company, or about our General Counsel Plan, contact Shannon M. Jenkins or Annie B. Markarian at 562-901-3050.

Article Submitted By: Annie Markarian