In the wake of the Supreme Court’s decision in U.S. v. Windsor, District Courts in 11 states - including most recently Oregon, Pennsylvania, and Wisconsin - have declared their state’s bans on same-sex marriage to be unconstitutional. To date, 20 states and the District of Columbia have legalized same-sex marriage. These decisions have a significant impact on the benefits and protections available to employees in same-sex marriages. On June 20, the Department of Labor proposed a rule that would extend FMLA protections to same-sex married couples, regardless of whether the state they live in recognizes their union.

After the Supreme Court held Section 3 of the Defense of Marriage Act (“DOMA”) to be unconstitutional on June 6th, 2013, a number of federal agencies granted married same-sex couples access to many benefits previously unavailable to them. The Department of Labor (“DOL”) expanded the Family Medical Leave Act (“FMLA”) to include same-sex marriages. Prior to Friday’s announcement, the DOL had redefined the term “spouse” for purposes of the FMLA, to include same-sex marriages recognized by the state in which the employee resides – in stark contrast to the DOL and Internal Revenue Service “state of celebration” position with respect to employee benefit plans. On June 20, the DOL went a step further, proposing a rule that would extend FMLA protections to same-sex spouses regardless of whether the state they live in recognizes same-sex marriage.

With an increasing number of states legalizing same sex-marriage, employers need to be cognizant of employees in same-sex marriages residing in states that recognize such marriages, as they are eligible for leave to care for a spouse under the circumstances delineated in the FMLA. Under the proposed rule, employers would have to go further and extend FMLA benefits to employees in same-sex marriages even if they reside in a state that does not recognize such marriages.

On a broader scale, employers must be extremely pragmatic with their employment policies. While Title VII of the Civil Rights Act does not include sexual orientation as a protected class, a growing number of courts have found discrimination based on sexual orientation to constitute discrimination on the basis of gender, which is a protected characteristic. In our April Employer Express, we discussed the Terveer case in which the U.S. District Court for the District of Columbia refused to dismiss an employment discrimination case. In Terveer, the employee claimed he was discriminated against because his sexual orientation failed to align with his employer’s expectations of his gender.  

While the Employment Non-Discrimination Act, which would make sexual orientation or gender preference a protected class, has yet to pass in Congress its enactment will likely generate lawsuits, given the current wave of popular support. In addition, many states and localities have passed non-discrimination legislation that specifically protects employees from discrimination due to their sexual orientation. Even in jurisdictions without these protections, employers are advised to revise their nondiscrimination policies to protect against discrimination based on sexual orientation.

Due to the quickly changing legal landscape in this area, employers should be extremely prudent when devising benefit plans and nondiscrimination policies. Employers should ensure that their policies are inclusive of all employees, regardless of whether certain characteristics are protected under federal, state, or local law.