CLIENT ALERT: Please read this special message.

As Law, Culture Shift on Same-Sex Marriage, Employers Are Making Changes

Law.com: Corporate Counsel - Shannon Green

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 firm’s 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 hasn’t seen many clients who don’t 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 "DOMA’s days are limited."

Malalis co-chairs the firm’s 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 shouldn’t 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 didn’t 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 equally—that they shouldn’t be treated differently because of their sexual orientation—how 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. “They’re 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, you’re behind the curve,” she says. “Whether or not the law is dictating it right now, the people are dictating it."

                                   *          *          *