Authors: Tracy Morley and Beth P. Zoller, XpertHR Legal Editors

Employers should take note that the Second Circuit Court of Appeals recently invalidated the Defense of Marriage Act (DOMA), the federal law that defines marriage as a legal union between a man and a woman.

In Windsor v. United States (2d Cir. 2012), the court found DOMA unconstitutional, and determined that it was a clear violation of the civil rights of gay Americans under the equal protection clause of the US Constitution. The court recognized any law which discriminates against individuals based on sexual orientation should be treated very skeptically under the Constitution and the state must have an "exceedingly persuasive" justification and compelling reason for the discrimination.

The ruling was in response to a case brought by Edith Windsor who sued the government in November 2010 when she was taxed $363,053 after her spouse, Thea Spyer, passed away in 2009. The two women were married in Canada in 2007. If federal law accorded their marriage the same status as heterosexual marriages recognized by the state, Windsor would have paid no taxes.

Implications for Employers

This court ruling represents a significant step in the civil rights of gays, lesbians and transgender individuals and has vast implications for permitting same-sex spouses and partners in same sex relationships the right to obtain the same benefits as heterosexual spouses or partners.

At present, DOMA limits the rights of employees married to persons of the same sex in a number of areas. For example, DOMA does not provide same-sex spouses:

  • The opportunity to continue coverage under COBRA;
  • Social Security survivor benefits; and
  • Equal access to the Family and Medical Leave Act.

DOMA also affects how the beneficiaries of same-sex spouses are treated with regard to distributions form retirement plans.

It is likely that this ruling will be appealed to the Supreme Court along with Gill v. Office of Personnel Management, +682 F.3d 1 (1st Cir. 2012), Golinski v. Office of Personnel Management, +824 F. Supp. 2d 968 (N.D. Cal. 2012) and other federal court cases that have also declared DOMA unconstitutional. If these decisions are affirmed, this may lead to the eventual recognition of sexual orientation as a protected class under federal law and strike down any laws that attempt to discriminate against individuals based on sexual orientation.

Employers should be alert for changes in this rapidly changing area of the law.

Additional Resources

How to Prevent Discrimination Based on Sexual Orientation

Employee Management > EEO - Discrimination

Employee Management > EEO - Harassment

Gender Stereotyping Sexual Harassment Claim May Be Brought Regardless of Plaintiff's Sexual Orientation

Gender Identity, Gender Expression and Transgender Status in the Workplace

Employee Benefits > Benefit Planning and Design

Employee Benefits > Managing Health Care Costs

Payroll > Taxation of Employee Benefits