Author: Marta Moakley, XpertHR Legal Editor

September 20, 2013

Employers may wish to revisit ethics and conflict of interest policies to ensure their application to all married employees in the wake of the Supreme Court's recent decision addressing same-sex marriage. In U.S. v. Windsor, 133 S. Ct. 2675 (June 26, 2013), the Court struck down Section 3 of the Defense of Marriage Act (DOMA). Section 3 had defined a marriage as "only a legal union between one man and one woman as husband and wife." 1 U.S.C. § 7.

In August, the US Office of Government Ethics (OGE) issued guidance regarding the effect of Windsor on the Executive Branch Ethics Program. The OGE has advised that it will consider the following terms to include opposite-sex or same-sex interpretations:

  • "Marriage";
  • "Spouse"; and
  • "Relative."

This inclusive interpretation applies regardless of the employee's state of residency. However, the interpretation does not apply to employees in a civil union, domestic partnership or other legally recognized relationship other than marriage (although alternative ethical standards may continue to apply).

These changes are not surprising: one of the "friend of the court" briefs filed in the Windsor case specifically addressed the effect DOMA's Section 3 had on federal laws requiring public officials and candidates to disclose sources of spousal income and prohibiting nepotism. Specifically, Windsor closes loopholes for certain elected officials or others in public trust positions who, although legally married in some jurisdictions, had been exempt from ethics requirements addressing spouses. For example, an elected official in a same-sex marriage would not have been held to account for improper spousal gifts.

Employers should note that Windsor affects not only federal ethics laws for federal and executive branch employees, but also may alter statutes affecting the general public, such as campaign finance laws.

Employers should communicate any substantive changes to ethics policies or programs in a timely and effective fashion to employees. Specific reporting requirements and any other mandatory information should be stressed. Employers should direct any further employee inquiries to a specific office or individual to ensure consistency. Supervisor training may also be advisable so that situations that may give rise to conflicts of interest are promptly identified and properly addressed.