Same-Sex Spousal and Partner Benefits

DISCLAIMER: The information below is in the course of being updated and will likely change given the U.S. Supreme Court's decision in the Bostock case regarding Title VII and employment discrimination based on sexual orientation and gender identity, as well as other recent developments. Please check back for updates, or contact Lambda Legal's Help Desk.

Do I have the right to take time off from work to care for my same-sex spouse?

Yes, you do have that right. In 2014, the U.S. Department of Labor extended the protections of the Family and Medical Leave Act to all eligible employees in a legal marriage to a same-sex spouse, regardless of where they live.

How has the end of Section 3 of DOMA affected benefits for employees with a same-sex spouse or partner in private (non-government) workplaces?

A lot changed in the experiences of employees seeking non-government workplace benefits for a same-sex partner or spouse after the 2013 Supreme Court decision striking down Section 3 of the federal Defense of Marriage Act (DOMA), especially in the area of taxes.

DOMA did not bar private employers from offering most spousal employment benefits to employees’ same-sex spouses or domestic partners. But it did subject same-sex couples to discriminatory tax treatment and other forms of unequal treatment, whether the couples were legally married under state law or in a civil union or registered domestic partnership. For example, same-sex couples in any state-conferred legal status had to pay income taxes on the value of employer-sponsored health insurance that married different-sex couples do not have to pay. Now that DOMA has been struck down, all married couples—whether same-sex or different-sex—are treated the same for federal income tax purposes.  For many federal tax purposes, however, discrimination remains for couples in a civil union or registered domestic partnership because those state statuses are not recognized fully, if at all, under federal law.  (For details about how the end of DOMA affects you, click here).

If I live in a state that recognizes same-sex couples’ marriages, is my employer required to provide my same-sex spouse the same benefits it provides to different-sex spouses?

Your employer absolutely should be required to provide such benefits. Although the law in this area is still evolving, Lambda Legal firmly believes that any inequality in benefits or other compensation for workers with a same-sex spouse rather than a different-sex spouse constitutes sex discrimination under Title VII of the Civil Rights Act of 1964.

If I live in a state where I can marry my same-sex partner, but I have not done so, is my employer required to provide my same-sex partner the same benefits provided to different-sex spouses?

Probably not.  Whether or not we think it is fair, employers generally are allowed to distinguish between married and unmarried employees for purposes of employee benefits as long as employees are able to marry irrespective of gender and there is no discrimination because of sex.  And although some state and local laws forbid workplace discrimination based on marital status, those protections often do not apply to the insurance plans offered by private-sector employers because those laws are preempted by a federal law called, the Employment Retirement Income Security Act (ERISA).

If I live in a state that does not recognize marriages of same-sex couples, is my employer required to provide my same-sex spouse the same benefits it provides to different-sex spouses?

Your employer can and should provide such benefits in an equal manner. State laws that deny recognition to same-sex couples’ marriages do not control most private employers’ ability to provide benefits to same-sex spouses. As for public employees, Lambda Legal has argued successfully in court that the federal Equal Protection Clause requires public employers to offer all employees a way to qualify their spouse or domestic partner for family benefits. If marriage is not available to workers with a same-sex partner, then the employer must offer an alternate way to qualify.  Public employees also benefit now from the wave of federal decisions that have invalidated state laws denying marriage to same-sex couples since the Supreme Court overturned DOMA in 2013.

If I live in a state where I cannot get married, how do I advocate with my employer to provide the same or similar benefits to my same-sex partner that it provides to different-sex spouses?

A: There are three main arguments you can make:

1.  Providing benefits to same-sex partners is fair, and it is good business. That is why 62 % of Fortune 500 (or Fortune 1,000) companies offer equal benefits as a matter of voluntary corporate policy.  They want to attract and retain the best talent, and they want to act consistently with their stated commitment to equal employment opportunity.

2. Just because you might be permitted to travel to another state to marry, that does not make it a “fair” option. List for your employer the many reasons why it is important to be able to marry in one’s own locality, such as the proximity of loved ones; the availability of a religious or spiritual advisor; and not being required to enter into a legal status that one’s home state does not honor, which creates inconsistency and confusion between one’s legal status under federal law and under state-law.

3. Private sector employers usually understand that they are free to offer equal benefits whether or not state law allows same-sex couples to marry; major national employers offering domestic partner benefits for more than twenty years have made this clear. Some public employers may still resist requests for equal benefits based on a state’s law denying marriage. But, even in those states, there should be openness to equal benefits because the federal Equal Protection Clause applies, as Lambda Legal has shown through cases such as Diaz v. Brewer in Arizona. The many post-DOMA court decisions overturning state-level marriage bans based on the U.S. Constitution further reinforce that state governments should not be discriminating against same-sex couples.

FOR MORE INFORMATION: Contact our Help Desk if you feel you have experienced discrimination.