The DOMA Ruling and the Workplace

As the partner in charge of LGBT diversity and inclusion at the New York law firm McDermott Will & Emery, Lisa Linsky has spent much of her career supporting workplace equality. She considers the recent Defense of Marriage Act (DOMA) ruling, which deemed it unconstitutional to define “marriage” as only between one man and one woman, a victory for the LGBT community. In addition to her main role at the law firm, Linsky created and chairs the firm-wide Lesbian, Gay, Bisexual and Transgender Diversity Committee and serves on the firm’s Pro Bono and Community Service Committee.

How will the ruling on DOMA impact the workplace?
Significantly, in many cases.

First, it is worth mentioning that many employers currently have in place policies that are LGBT-inclusive. Thanks in large part to the work of the Human Rights Campaign and its Corporate Equality Index which, for many years, has been challenging employers in the United States to raise the bar for LGBT workplace diversity, inclusion and equality, many companies, including major law firms like McDermott Will & Emery, have stepped up and changed their policies to include the same-sex partners and spouses of their gay and lesbian employees.

For companies that have not been as proactive in this area and which would not otherwise implement benefits for their gay and lesbian employees were it not for the change in the law, the implications from the Supreme Court’s DOMA decision may directly impact them. For example, companies located in states that recognize marriages among same-sex couples will be required to ensure parity for benefits provided to both heterosexual and gay and lesbian employees and their respective spouses. Such benefits include coverage for a spouse’s health insurance, payment for a spouse’s health insurance with pre-tax dollars, addition of spouses to flexible spending arrangements, ability to take up to 12 weeks of leave pursuant to the Family and Medical Leave Act to care for a spouse, and a spouse’s entitlement to survivor benefits from the employee’s federally recognized pension.

But whether companies not otherwise inclined to do so must extend benefits to their gay and lesbian employees and their spouses may turn on how broadly the federal government chooses to recognize the legality of such marriages. Eligibility for some federal benefits depends on the state of domicile or primary residence of the couple. In such a case, if a same-sex couple is married in a state like New York which permits the marriage, but then moves to any of the 37 states in the country that do not, the couple may find themselves out in the cold and unable to access these benefits because they are still not considered married for this purpose.

The reason this anomaly can occur is because Section 2 of DOMA remains on the books and permits states to continue to disrespect same-sex marriages. Section 2 carves out an exception to the Full Faith and Credit Clause of the Constitution that would otherwise require the 50 states to recognize marriages lawfully entered in any state, regardless of the sexual orientation of the couple.

Other federal benefits are granted based on the state of celebration of the marriage, which ensures uniformity for a same-sex married couple, regardless of the states in which they work and travel if such states, and in turn, their respective employers, do not recognize the marriages. The president and his administration are being urged to adopt this state of celebration standard to recognize same-sex marriages across the board, and to ensure uniformity in determining eligibility for federal benefits.

What can employers do to show their support for the DOMA ruling?
There are a number of things employers can do to show their support for the Supreme Court’s DOMA ruling and this significant change in the law.

They can talk about the decisions by hosting programs and circulating articles about the decisions. By taking these steps, employers create an environment of open and honest communication with their employees and encourage discussion.

Another easy step employers can immediately take is to review current policies to determine if there are gaps between the benefits that are granted to opposite-sex spouses of heterosexual employees and same-sex spouses of gay and lesbian employees. To the extent there are gaps in policies and benefits, employers can and should start making a plan to redress these and set a deadline by which the changes will be made.

In addition, employers can keep employees informed about changes in policies that will result from the DOMA decision. For those employers who do not recognize same-sex marriages and conduct business in states that do not require them to do so for federal benefits purposes, employers should communicate with their employees about this position as well, so that there is transparency regarding the basis for the employers’ decisions. Under this scenario, a savvy employer may advise its employees that it will take direction from the various federal agencies that administer benefits plans and if a state of celebration standard is established, assure employees that the employer will comply with the law.

What is the most significant impact of the DOMA ruling?
On the practical level, the discriminatory Section 3 of the Defense of Marriage Act which defined “marriage” as only between one man and one woman was held unconstitutional in an opinion written by Justice Kennedy. This means that the federal government must now recognize the lawfully entered marriages of same-sex couples, whether they were entered in states in the nation or in other countries that permit marriage equality.

How far-reaching is this decision for same-sex couples who have married or will marry? There are over 1,100 federal benefits and obligations that turn on the issue of whether a couple is married for purposes of triggering these federal rights and protections. Same-sex married couples will now have the assurance that their marriages will be respected and protected by the United States federal government.

On the symbolic side, the death of DOMA’s Section 3 is a victory for civil rights and for equality. The Supreme Court’s decision sends a clear and compelling message that these relationships are entitled to the same respect and dignity that is afforded opposite-sex marriages. This decision represents an affirming statement to our children and communities that same-sex marriages are no longer to be treated as “separate but equal.”

What do LGBT workers need to know about this ruling?
Employers can make the opinion available on their intranets for employees to review. If the company has a diversity committee or council, or someone in an HR department who is up to speed on the workplace implications from the decision, it is a good idea to communicate to employees that there are people within the company who can talk about the impact of the decisions with them and to answer the many questions that will no doubt result from the decision.

The bottom line is that gay and lesbian employees need to know that generally speaking, workplace rules and eligibility for federal benefits are about to change in significant ways and it behooves them to educate themselves and their families.

Jessica DuBois-Maahs is an editorial intern at Diversity Executive magazine. She can be reached at editor@diversity-executive.com.