Matt Grosh recently talked about Cam and Mitchell from Modern Family as a backdrop to the IRS’s recent revenue ruling. That ruling recognized same-sex marriages for federal tax purposes even when a couple resides in a state that does not permit same-sex marriages. The couple must only have been validly married in a state that recognizes same-sex marriage.
After last summer’s Supreme Court decision analyzing the Defense of Marriage Act, numerous questions arose regarding legal treatment of same sex couples. Employers were confused about their obligations regarding benefits such as health insurance and retirement plans. After consultation with the Department of Justice and the Department of Treasury (Internal Revenue Service), the United States Department of Labor (DOL) issued Guidance to Employee Benefits Plans on the definition of spouse and marriage.
The DOL advised that employers are to recognize "spouses" and "marriages" based on the validity of the marriage in the state where the couple was married rather than the state where they reside. The DOL concluded that such an interpretation would make it easier for employers to uniformly administer benefits to all employees, in addition to offering more protection to same-sex couples. In effect, the Department of Labor Regulations, Rulings, Opinions and Exemptions will assume that the term "spouse" refers to any individual who is legally married under any state law. Consistent with the IRS ruling, the terms "spouse" and "marriage" will not include individuals in domestic partnerships or civil unions.
While employers will now be required to offer workplace protections to same sex spouses, such as federally mandated FMLA Leave, the Department of Labor does not address discrimination. It also does not require that employers cover same sex spouses under their health plans.
Twenty years have passed since the Jonathan Demme movie Philadelphia premiered. In it, a lawyer with AIDS, Andrew Beckett (played by Tom Hanks), sued his law firm employer for employment discrimination after he was fired. How could it have been predicted in 1993 that Andrew Beckett could have traveled to a neighboring state to marry his partner and obtain tax and employee benefits that heterosexual couples enjoy? It happened in a movie. But twenty years later, there is no federal law to prohibit an employer from discriminating against or terminating an employee because of his or her sexual preference.
While some local municipalities do prohibit sexual orientation discrimination – for example, the cities of Philadelphia, Harrisburg, Pittsburgh, York, Lancaster, Allentown and Scranton – in the state of Pennsylvania, there is not a recognized ban on discrimination based on sexual orientation. However, Pennsylvania House Bill 300 proposes a state-wide ban on discrimination based on sexual orientation and gender expression. This ban would include discrimination with regard to employment, housing, credit and public accommodations. In addition, the federal Employee Non-Discrimination Bill (ENDA) recently passed the United States Senate. Employers should be aware of these changes as they occur to determine if it is necessary to update company policies in order to comply with the law.
Christina Hausner is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, PA. She received her law degree from Duquesne University School of Law and has practiced in the area of employment law for over 25 years.