As Law, Culture Shift on Same-Sex Marriage, Employers Are Making Changes
In the wake of the U.S. Court of Appeals for the Second Circuit striking down §3 of the Defense of Marriage Act (DOMA) last week [PDF], many corporate lawyers are contemplating the impact it could have on the private sector.
The law affects not only benefits for federal employees, but also federal laws that apply to private employees. Kristin McGurn, a partner at the Boston office of management-side firm Seyfarth Shaw, says most of her clients are taking a wait-and-see approach to the political and judicial battle over DOMA.
The U.S. Court of Appeals for the First Circuit found DOMA unconstitutional in May, and several district courts have come to the same conclusion. Experts anticipate that the U.S. Supreme Court will take up the issue during this term.
In an email to CorpCounsel.com, McGurn said that many of her firms clients have already voluntarily elected to offer benefits to same-sex spouses and domestic partners under the federal Family Medical Leave Act and the Consolidated Omnibus Budget Reconciliation Act (better known as COBRA). But she said she hasnt seen many clients who dont otherwise provide domestic partner benefits do so for same-sex spouses based on the DOMA cases.
Carmelyn Malalis, a partner with Outten & Golden who represents plaintiffs in employment matters, was ecstatic to hear about the decision. She says a second ruling striking down the law sends a signal to employers that "DOMAs days are limited."
Malalis co-chairs the firms Lesbian, Gay, Bisexual, and Transgender Workplace Rights Practice Group. Like many lawyers who represent members of the LGBT community, Malalis was elated that the Second Circuit went a step further in reviewing DOMA than did the First Circuit, applying intermediate scrutiny.
Under the heightened standard, it must be shown that the law or policy being challenged furthers an important government interest in a manner that is substantially related to that interest. Applying the general framework of rational basis review, which is the level of scrutiny applied by other courts, including the First Circuit, Malalis says the burden rests largely on the plaintiff. With heightened scrutiny, that burden is shifted to the government to show why the law shouldnt be considered unconstitutional.
I think that any time a landmark decision like this comes down, it makes people generally reexamine the rights of whatever group of people are affected by it, says Malalis. I think that the implications of this are far-ranging.
In her own New York practice, Malalis has seen an increase in calls from LGBT employees since the passage of marriage equality legislation in the Empire State last year. Because gay marriage attracts significant press attention, she says LGBT employees start to think more broadly about their rights and how they might be discriminated against on other fronts.
In addition to debates about the legal framework around same-sex marriage, the culture in the United States is evolving on the issue. In June, the U.S. Senate considered, but didnt pass, the Employment Non-Discrimination Act (ENDA). It would have expanded the protections of Title VII to cover sexual orientation and gender identity and would have prohibited discrimination in hiring.
But in April, the Equal Employment Opportunity Commission issued a landmark decision in the Mia Macy v. Eric Holder case,finding that discrimination against transgendered individuals is a violation of Title VII.
Do the recent decisions by the federal courts and the EEOC forecast an outcome that is inevitable?
Malalis says: "When the idea is that individuals should be treated equallythat they shouldnt be treated differently because of their sexual orientationhow is it a huge leap to then say that there should be a law covering discrimination against these folks?
To be prepared for such changes in the law, there are already a lot of employers who are starting to change their policies. Theyre making their EEO policies very inclusive to include sexual orientation, gender identity, gender expression, discrimination against transgender individuals, and other groups, says Malalis.
For the people who have not included [these changes] yet, youre behind the curve, she says. Whether or not the law is dictating it right now, the people are dictating it."
California-based lawyer Cliff Palefsky represents plaintiffs in civil rights and employment matters. He says that the more states that pass marriage equality legislation and prohibitions against discrimination, the more complicated it will become for companies with a national presence to manage separate policies for each state.
The McGuinn, Hillsman & Palefsky partner says the passage of ENDA and similar legislation expanding worker protections is clearly on the way. Palefsky predicts than in a couple of years the current efforts to block such laws will seem antiquated.