As recent headlines attest, the state of marriage equality in the United States is a story in the making. For employers and employees alike, keeping apace of these changes can be a challenge. To date, tens of thousands of same-sex couples have been legally married across the country. Currently, same-sex couples are entitled to marry in Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire. Although those unions are not acknowledged federally, they are recognized in New York as well as the District of Columbia, where the D.C. Council voted overwhelmingly in December to legalize same-sex marriage.1
Thousands more same-sex couples in Connecticut, New Hampshire, New Jersey, and Vermont have entered into civil unions (a legal union similar to marriage, established to allow similar rights to same-sex couples as those enjoyed by partners in a traditional marriage). More expansively, same-sex couples are protected by broad domestic-partner or similar laws in California, Colorado, the District of Columbia, California, Nevada, Oregon, Hawaii, Maine (despite last November's result at the polls), Maryland, Nevada, New Jersey, Oregon, Washington, and Wisconsin.2
As laws and cultural attitudes governing marriage equality shift, those seismic changes are reflected in the workplace. During the past fifteen years, domesticpartner benefits have become commonplace among employees in law firms and corporate legal departments, with 83% and 59% of the Fortune 100 and Fortune 500 respectively extending benefits to both same-sex and heterosexual domestic partners.
Many employers offered same-sex spousal benefits long before Massachusetts first legalized marriage parity in 2004. Since that time, and as other states have legalized same-sex marriage, even more companies and firms have followed suit.
“If there are any large employers who have not yet been asked about same-sex spousal benefits, they soon will be,” predicts Todd Solomon, partner in the employee benefits department of McDermott Will & Emery’s Chicago office and author of Domestic Partner Benefits–An Employer’s Guide. “A twenty-person company in a small city might not have to face this issue, but most other employers will need to deal with this very soon–if they have not done so already.”
Solomon continues, “Because of [the federal Defense of Marriage Act of 1996],3 spousal benefits aren’t guaranteed even in states where same-sex marriage is legal. Under federal law, employers are permitted to define spouse in benefit plans as one man, one woman, husband and wife; and they can pretty much deny benefits to same-sex spouses if so inclined. Most benefits plans are governed by federal laws like the Employee Retirement Income Security Act of 1974 and the tax code, thus precluding mandatory inclusion of same-sex spouses. There are exceptions for government employers who are exclusively governed by state laws.”
Furthermore, because same-sex partners cannot qualify as spouses under federal law for tax law purposes, health benefits provided to same-sex spouses are taxed unless the spouse qualifies as the employee’s dependent under the tax code. Some more-progressive employers adjust for this disparity by “grossing up,” i.e., increasing the compensation of their LGBT employees by the amount they are taxed on partner or spousal benefits to put them on par with their heterosexual peers.
Solomon advises that “since private employers are not required to extend benefits to same-sex spouses under federal law, employees need to approach the issue as a human-resources or policy matter. Employees need to appeal to the fair-mindedness of their employer. Legally, an employee’s only viable remedy is a lawsuit for sexual orientation discrimination, which isn’t actionable yet under federal law, but that could change; the Employment NonDiscrimination Act has been proposed for some time, and is better poised to pass in today’s political climate.”4
More than 1,000 federal rights, benefits, and responsibilities are available to legally married oppositesex couples, but unavailable to same-sex couples who have historically been denied the right to marry. In recent years, however, marriage equality has snowballed, gaining momentum not only among New England state legislatures but younger sectors of the electorate as well. Although the changes may merit some celebration, it is important for LGBT attorneys to maintain a practical handle on their benefits and realize that inequities may still arise.
“Whether you choose partner benefits or spousal benefits will depend on the particular plan you are looking for, and what your career plans are for the future,” explains Samir Luther, associate director for the Human Rights Campaign Foundation’s Workplace Project. “If you work in Connecticut and receive spousal benefits, are those benefits portable? If I move to Illinois, will I then have to re-enroll with domestic-partner benefits?
“Partner benefits may recognize same-sex spouses,” Luther continues, “so if you and your same-sex spouse have a marriage certificate that should be sufficient proof to enroll in partner benefits. There should be no need to do an affidavit or something along those lines to verify the relationship.”
Traditionally, most opposite-sex married couples have not needed to provide proof of marriage, observes Luther. In comparison, from the beginning, same-sex partners have been held to a higher burden of proof. In California, state law necessitates the same documentation requirements for registered domestic partners and legally married spouses alike. California’s health insurers are required to treat spouses and domestic partners equally–not only mandating that employers providing spousal benefits must also provide partner benefits, but also precluding employers from asking for documentation for state-registered partners if not also asking for documentation for diffeerentsex spouses As Luther points out, “if you’re going to require documentation to prevent fraud, it’s only fair to get proof–be it marriage certificate, state registration, or affidavit—from straight and LGBT couples alike.
“When an employee marries, naturally he or she wants to have that relationship recognized at work,” he continues. “LGBT employees are asking for nothing more – and nothing less – than what their heterosexual colleagues are asking for and receiving as a matter of course.”
Many LGBT attorneys are keenly interested in a wide variety of diversity-related issue, such as discrimination by the military, immigration rights, and ensuring that people of color are positioned to thrive in their workplaces, notes Joe Evall, a litigation partner in Orrick’s New York office. Nevertheless, in his experience, when LGBT lawyers gather among themselves for affinity groups or bar committees, the primary workplace policy that they discuss is domestic-partner and spousal benefits.
“Most big firms give partner benfits, and if they don’t, people wonder what their problem is,” he explains. “Other issues of concern for LGBT attorneys include meaningful mentoring, and ensuring that they can progress in the workplace as openly LGBT people. Supporting LGBT community organizations, both through pro bono work and sponsorships, is high on that list too.”
For Kelly McCown, founding partner of McCown & Evans LLP, a firm specializing in immigration, same-sex marriage is both a professional and personal concern. McCown and her spouse, Barbara, first tied the knot almost five years ago in San Francisco, Calif., after Mayor Gavin Newsom sanctioned same-sex weddings. (About 4,000 gay and lesbian couples were wed, but the California Supreme Court later ruled those marriages legally invalid because Newsom acted without proper authority.)
When California became the second U.S. state after Massachusetts to make marriage licenses available to same-sex couples in June 2008, McCown and her spouse married again. (In November 2008, California voters approved Proposition 8, which amended the state constitution to prohibit marriage equality. When the proposition was challenged in court, the California Supreme Court upheld the proposition but did not invalidate the approximately 18,000 marriages of samesex couples concluded before the election.)
McCown hopes she has uttered her last “I do.”She shares, “to me, there’s a real societal diffeerence between being married and being domestic partners. “Society values and validates marriage in a diffeerent way. In some way, ‘domestic partners’ sounds clinical, and not everyone is sure exactly what it means. And in terms of fair treatment in the workplace, having legal marriage for everyone could help eliminate that lack of consistency between domestic-partner and spousal benefits that currently exists in many organizations. As a practical matter, I think employers would have a difficult time rationalizing diffeerent treatment for opposite-sex and same-sex spouses when it comes to benefits.”
Elaine Arabatzis, diversity/pro bono counsel at Dickstein Shapiro’s New York office, shares, “I don’t sense a lot of resistance to the ideology in firms. And given the pressure to offer same-sex partner benefits in recent years, I don’t foresee obstacles to offering spousal benefits as same-sex marriage is legalized.
“I understand that attaining marriage equality is a gradual struggle, but until my partner can avail herself of my Social Security [benefits], a lot of this is meaningless to me,” Arabitzis continues. “If I were married to a man, he would be recognized as the beneficiary of my Social Security benefits–not so, if I’m married to a woman. Current laws affect not only the partners of gays and lesbians, but their minor children as well. I get taxed the same as my heterosexual colleagues, but don’t get the same benefits.”
Valerie Hoffman, an employment partner in Seyfarth Shaw’s Chicago and Los Angeles offices, and a member of the Workplace Diversity Special Expertise Panel of the Society of Human Resource Management (SHRM), shares this concern. “Until federal laws instruct otherwise, some corporations and firms may never extend same-sex partner or spousal benefits. Employers have different motivations. For some, it hinges on a cultural or religious viewpoint, while for others it’s simply about money. There are employers who, as a matter of economics, will extend benefits only to those whom they absolutely must, and not go beyond that.
“Are companies that don’t extend same-sex partner or spousal benefits particularly unsympathetic to LGBT employees? Not necessarily,” continues Hoffman. “Sometimes they’re facing fiscal constraints, especially in this challenging economic climate. It’s not a time when employers are enhancing what benefits they’re already offering.” So, she speculates, “they [may] choose to not extend same-sex spousal benefits at the same time that they are making reductions in force or instituting furloughs. Hopefully, as the economic crunch is relieved, we’ll see an across-the-board push toward providing benefits for all couples.”
All the attorneys interviewed agree: so long as federal and state laws differ, tracking the changes in recognizing same-sex couples will be an administrative challenge for human-resources departments and employees alike. As more states legalize same-sex marriage, however, patterns will emerge; sorting out benefits will become less confusing, and marriage equality will be eventually be just one more feature of an equitable workplace. DB
Notes
1 As this issue went to press, the D.C. Council was expected to uphold the decision in a second vote on December 15, then pass it along to mayor Adrian Fenty for his signature. Should that come to pass, the U.S. Congress has a period of thirty “legislative days” to review the bill.
2 Laws in these states range from broad domestic-partnership laws in California and Washington (which encompass all of the rights and benefits of marriage but without the title) to narrow-scope laws in Maryland and reciprocal-benefi ciary laws in Hawaii (which convey only limited rights to same-sex partners).
3 The Defense of Marriage Act (DOMA) is a federal law that defines marriage as a legal union between one man and one woman. The law’s provides that states are not required to recognize same-sex marriages, and the federal government may not treat same-sex relationships as marriages even if they are state-recognized.
4 The Employment Non-Discrimination Act (ENDA) is a proposed bill in the United States Congress that would prohibit discrimination against employees on the basis of sexual orientation sexual or gender identity for civilian nonreligious employers with over 15 employees.
Patrick Folliard is a freelance writer based in Silver Spring, Md.
From the January/February 2010 issue of Diversity & The Bar®