Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

A group of 278 amici filed a brief with the Supreme Court urging it to overturn the Defense of Marriage Act.  In that group are some of the largest or most well-known employers in the U.S.  Those employers include Google Inc., Facebook Inc., Microsoft, Apple, Walt Disney, and Starbucks Corp., to name a few.

This group has signed a brief filed by the Gay & Lesbian Advocates & Defenders in the case of  United States v. Edith Schlain Windsor, case No. 12-307 asserting that the Defense of Marriage Act places undue administrative burdens on employers who operate in states that have legalized gay marriages or civil unions.  This is largely the same group of employers who have already filed an amicus brief in the case of the Commonwealth of Massachusetts v. HSS, case No.  12-15 (petition for certiorari pending) and in Hollingsworth v. Perry, Case No. 12-144.

Oral arguments will be held in Hollingsworth and Windsor on March 26 and 27th, respectively.  Decisions are expected in June 2013.

We have long said that the DOMA cases are important for employers as they implicate compliance with state discrimination laws and will impact the administration of employee benefits and tax withholdings.  I guess now we can say we are in good company (pun intended).  Here is the complete list of the companies signing the amicus brief to strike down DOMA.

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House Democrats have now entered the fray over the Defense of Marriage Act ("DOMA"). 

As we reported on July 6th, the Obama Administration and GOP leadership filed petitions to seek review of recent decisions holding DOMA was unconstitutional (Obama Administration Asks the Supremes if "Everybody's Got the Right to Love").

The Huffington Post is reporting that 132 House Democrats have filed an amicus brief in the 9th Circuit case of Golinski v. Office of Personnel Management. The Golinski case is one of two cases the Obama Administration has petitioned the U.S. Supreme Court to review. 

One of the interesting arguments raised in the petition directly challenges the GOP's argument that DOMA serves the legitimate governmental interest of creating new families and encouraging couples to have children.  The Democrats argue that if that was true, then the law should deny benefits to any couple, regardless of sexual orientation, that does not have children.

The arguments raised on both sides make this a hot campaign issue for Mr. Obama and Mitt Romney.  Here's hoping the Supreme Court does not disappoint and takes on the issue. 

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On March 1, 2012, Maryland Governor Martin O'Malley signed into law a bill that legalizes gay marriage.

Like New York's law and, more recently, Hawaii's, Maryland's bill does not create domestic partnerships or civil unions.  Instead, the law modifies the definition of civil marriage so that a marriage is not defined as only occurring between a man and a woman.

The law does not become effective until October 1, 2012.  Prior to the effective date, Maryland employers should insure that any necessary policies, such as bereavement policies and personal leave to care for a spouse, are either broad enough to cover same-sex spouses or are accordingly modified.

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Although we do not currently have an office in Hawaii, and perhaps it's just because it was 16 degrees when I went to take the dog for a walk this morning, the latest news from sunny and warm Hawaii caught my eye.

  (photo courtesy of Sarah_Ackerman)

New Year's Day 2012 marked the first day that Hawaii performed civil union ceremonies under a law that was enacted in February 2011. 

Since Hawaii is already a popular honeymoon destination, the law is likely going to boost gay and lesbian tourism for same-sex couples planning destination weddings.  The law not only benefits gay and lesbian tourists and those involved in the hospitality industry, it benefits all same-sex residents of Hawaii.

The law also means that Hawaii employers will need to review benefits and leave policies to determine if revisions need to made to allow for civil union partners to have the same benefits as spouses.  Of course, certain benefits may not need to be or cannot be changed because of the federal Defense of Marriage Act.

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The question remains to be seen what the full impact of New York's recent passage of the Marriage Equality Act will be on employers. 

The law, which Lady Gaga heavily campaigned for and which drew bi-partisan support, will have at least some immediate impact on New York employers. 

New York's law, unlike some other states who have addressed the issue of gay marriage, did not sidestep the issue and create civil unions.  Instead, New York's law amends any existing statute that references marriage to be gender neutral and to not define marriage as being solely between a man and a woman.  As such, and as we previously posted, employers may need to review policies to insure that same-sex couples are included in the definitions of protected classes.  

Another issue is what happens with benefit plans that provide coverage for "spouses."  Our colleague, Keith McMurdy, has also posted an informative blog on the effect on employers' benefit plans. 

Although the law generally applies to all employers, benevolent organizations and religious corporations formed under the Education Law or the Religious Corporations Law have some protection.   These entities will not be required to make accommodations, advantages, facilities, or privileges required under the law.

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