Same-Sex Marriage Update

On May 20, 2014, a federal Judge for the Middle District of Pennsylvania issued an opinion effectively lifting the state's ban on same sex marriage. The plaintiffs in Whitewood v. Wolf challenged the constitutionality of Pennsylvania's marriage laws, claiming these laws denied them Due Process and Equal Protection rights guaranteed by the Constitution. In describing PA's marriage laws and previous laws that discriminated against people based on their gender or race, Judge John E. Jones, III stated in his opinion that, "[w]e are a better people than what these laws represent, and it is time to discard them into the ash heap of history." This ruling is in line with a series of similar decisions that have occurred in the wake of the Supreme Court's United States v. Windsor decision. Windsor struck down Section 3 of the Federal Defense of Marriage Act ("DOMA"), which defined marriage as the union of one man and one woman for federal law purposes.

What impact does this decision have on employers? While there are no federal laws that protect employees against discrimination for their sexual orientation, twenty-one states do have such laws. Pennsylvania currently does not protect workers from discrimination based on sexual orientation on the state level. However, 34 municipalities in the state have passed laws protecting employees from this type of discrimination. In addition, employers may face sex discrimination claims under Title VII of the Civil Rights Act of 1964 ("Title VII") if they treat employees with same sex spouses in a disparate manner. The Equal Employment Opportunity Commission ("EEOC") enforces the ban against discrimination based on sex through Title VII, the Equal Pay Act of 1963, and the Civil Rights Act of 1991. While these laws do not cover sex discrimination based on sexual orientation, they do cover sex discrimination based on sex stereotyping. Recent rulings by the EEOC have determined that an employee can file a claim for sex discrimination based on sexual orientation because it is a form of sex stereotyping. In addition, President Obama signed an executive order prohibiting federal contractors from discriminating against employees based on sexual orientation. For employers, this presents a number of issues. Employers who discriminate against employees in the workplace who have same sex spouses could find themselves facing claims under Title VII or, depending where the employment is located, a state law or a local ordinance. Furthermore, employers could face claims of sex discrimination if they provide certain employee benefits to opposite sex spouses while excluding same sex spouses.
 
Employers who sponsor a qualified retirement plan will want to ensure that the plan treats same sex spouses in the same manner that opposite sex spouses are treated. After Windsor, survivor benefits offered to opposite sex spouses will now have to be offered to same sex spouses. Likewise after the Whitewood decision, if a same sex marriage ends in a divorce in Pennsylvania, a Qualified Domestic Release Order ("QDRO") issued for a same sex spouse will need to be treated as if issued for an opposite sex spouse.
 
Employers that sponsor welfare plans will have to consider offering spousal coverage to same sex spouses if their plan currently covers opposite sex spouses. Under the Employee Retirement Income Security Act ("ERISA") and under the Affordable Care Act ("ACA"), welfare plans are not required to offer spousal coverage. However, if the plan does offer spousal coverage but limits the coverage only to opposite sex spouses, the sponsoring employer may face a sex discrimination claim. Similarly, if an employer is required to contribute to a multiemployer welfare plan as part of a collective bargaining agreement, the employer could face the same risk of a sex discrimination claim if that plan offers spousal coverage only to opposite sex spouses.

For more information about the lift of the state's ban on same sex marriage and other employment law matters, please contact Joseph A. Vater, Jr. or Stephen A. Chesney.