Same-Sex Marriage Implications for Minnesota Employers
By: JOSEPH M. SOKOLOWSKI
September 2008
On May 15, 2008, the California Supreme Court ruled that same-sex couples have a constitutional right to marry, following in the footsteps of the Massachusetts Supreme Court’s 2003 decision in Goodridge v. Department of Public Health. Many were surprised it took five years for another state supreme court to follow suit, but it may not be another five years until the next state falls in line with Massachusetts and California. There are currently two pending lawsuits seeking the right to marry for same-sex couples, in Iowa (Varnum v. Brien) and in Connecticut (Kerrigan v. State of Connecticut).
Minnesota law does not recognize same-sex marriage. In 1971, the Minnesota Supreme Court held in Baker v. Nelson that same-sex marriage is prohibited in this state. In 1997, the Minnesota legislature passed a law declaring the same. However, Minnesota employers are not immune from the need to consider the implications of same-sex marriage.
Unlike Massachusetts, California will marry individuals regardless of whether their home states recognize the marriage. A Minnesota same-sex couple, residing and employed in Minnesota, yet unable to be married in Minnesota, can be legally married in California. So, as same-sex couples, validly married in California, return to Minnesota, employers need to be ready for the issues that follow.
Discrimination Against Married Same-Sex Couples
Employers should first consider whether their discrimination policies are sufficient to prohibit discrimination against married same-sex couples.
Same-sex marriage implicates a number of protected classifications, including sexual orientation, gender, marital status, and religion. Our intuition might be to assume that discrimination against married same-sex couples is always sexual orientation discrimination, but it does not always fall solely under that classification. A supervisor may discriminate against an individual in a same-sex marriage, not because of any personal animosity against individuals in same-sex relationships, but because the supervisor believes that same-sex marriage should not be legal. If a supervisor treats an employee in a same-sex marriage in a discriminatory manner because he does not believe that the employee should be married, the supervisor is discriminating on the basis of marital status.
If the supervisor treats individuals in heterosexual marriages more favorably, then sexual orientation discrimination may be present as well. Thus, discrimination against married same-sex couples is frequently a hybrid of marital status and sexual orientation discrimination.
Although federal law (Title VII) does not prohibit employers from discriminating on the basis of sexual orientation or marital status, both of these classes are protected from discrimination in employment under the Minnesota Human Rights Act (MHRA).
Benefits for Same-Sex Partners
If Minnesota law prohibits discrimination on the basis of sexual orientation and marital status, does that mean that employers must provide the same benefits to all employees’ spouses, whether they are in same-sex marriages or not?
A Minnesota court addressed whether the denial of benefits to same-sex partners violates the prohibition on sexual orientation discrimination under the MHRA in Lilly v. City of Minneapolis. In that case, the Minnesota Court of Appeals based its decision on the fact that when the legislature amended the MHRA to include sexual orientation as a protected class, the legislature specifically noted that the law would not require benefits for same-sex partners. Thus, refusing to offer benefits to an employee’s same-sex partner, while at the same time offering benefits to a heterosexual employee’s spouse, does not violate the Minnesota Human Rights Act.
Likewise, the denial of benefits to same-sex partners does not violate the Minnesota Human Rights Act’s prohibition on marital status discrimination, because of the federal Defense of Marriage Act (DOMA). DOMA provides that marriage is a “legal union between one man and one woman” and allows a state to refuse to recognize the validity of a same-sex marriage performed in another state. Following DOMA, in 1997 the Minnesota legislature passed its own Defense of Marriage Act, opting to refuse to recognize same-sex marriages. Although Minnesota case law has not yet addressed this specific issue, denying benefits to same-sex couples, married in Massachusetts or California, would not constitute marital status discrimination under the MHRA, because same-sex couples do not have a legally recognized status as married couples in Minnesota. Minnesota law treats same-sex couples married in other jurisdictions as unmarried. Therefore, as long as the employer treats all unmarried employees (in same-sex relationships or not) equally, there is no marital status discrimination.
Employers should be familiar with how the following benefits apply to same-sex couples:
Health Insurance:
The IRS does not recognize same-sex marriages pursuant to DOMA; thus there is differential tax treatment of same-sex spouses. A same-sex spouse participating in a family coverage under a group health or dental plan is not entitled to a federal pretax deduction for the cost of the entire premium.
Continuation of Health Coverage (COBRA):
Same-sex couples, married or divorced, do not have an entitlement to COBRA for the non-employee same-sex spouse, including Social Security benefits and continued group health coverage. However, insurance companies may elect to provide continuing coverage nonetheless.
Employee Retirement Income Security Act (ERISA):
A same-sex spouse will not be recognized under an ERISA-based plan to the extent the plan preempts state law. ERISA plan sponsors are not required to extend to same-sex couples the mandated qualified preretirement survivor annuity (QPSA) and the qualified joint and survivor annuity (QJSA) at the employee’s retirement. A plan is permitted to offer both types of survivor benefits for same-sex spouses, but doing so carries federal tax implications.
Family & Medical Leave Act (FMLA):
FMLA permits employees to take up to 12 weeks of unpaid leave to care for a child, spouse, or parent with a serious health condition, or for the worker’s own serious health condition. An employee is not entitled under FMLA to take time off to care for his or her same-sex partner/spouse. However, the FMLA does not prohibit an employer from electing to provide the time off anyway. If an employer typically offers expansive FMLA leave, that employer should be careful not to deny leave to same-sex couples discriminatorily.
Takeaway
As same-sex marriage becomes more common, employers must be proactive in addressing the employment issues it presents. First, employers must ensure that their policies address discrimination of employees in a same-sex marriage—putting their employees on notice that discrimination on the basis of same-sex marriage is prohibited. Next, employers should expand their discrimination and harassment training to encompass not just sexual orientation and marital status discrimination, but also same-sex marriage discrimination, a hybrid of both classes. Finally, employers should be prepared to address the benefit issues raised by same-sex marriage. Employers who understand the implications of same-sex marriage will be more apt to effectively navigate the emerging employment law issues it presents.