Gay Marriage And The Workplace - How Will The Ca Supreme Court Decision Impact Workplace Policies?

No matter how the Supreme Court decides the gay marriage case on Tuesday, May 26, the decision will spark controversy and debate about the pros and cons of the legalization of gay marriage. However, setting aside the emotional aspects of this controversy, employers should focus on the implications of existing law when dealing with same-sex and other nontraditional relationships in fashioning workplace policies and complying with applicable California law.

Even without the legalization of gay marriage, for the past ten years California law has recognized the status of domestic partnerships. Section 297.5 of the Family Code states:

"Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses."

Thus, in developing any workplace policy that applies to spouses of employees, that policy must automatically apply to registered domestic partners of employees. For instance, if a California employer has a policy of allowing employees to take bereavement leave for the death of a spouse, that policy must permit the employee to take bereavement leave for the death of a domestic partner.

Other provisions in California law require that domestic partners be treated as the equivalent of a spouse in the context of a marriage. For example, any group health care service plan must offer coverage for a registered domestic partner which is equal to the coverage that is provided to a spouse. Under the Labor Code, crime victim leave is available to a domestic partner:

"An employer, and any agent of an employer, shall allow an employee who is a victim of a crime, an immediate family member of a victim, a registered domestic partner of a victim, or the child of a registered domestic partner of a victim to be absent from work in order to attend judicial proceedings related to that crime."

In addition, employers who provide sick leave for employees must allow an employee to use, in any calendar year, one-half the employee's accrued and available sick leave entitlement, to attend to an illness of a child, parent, spouse, or domestic partner of the employee. However, all conditions and restrictions placed by the employer upon the use by an employee of sick leave apply to the use by an employee of sick leave to attend to an illness of his or her child, parent, spouse, or domestic partner.

Further, under the Unruh Civil Rights Act, a business in California may not discriminate against domestic partners in connection with the services it offers. Thus for example, the California Supreme Court has ruled that a lesbian couple who were registered domestic partners could prevail on a marital-status discrimination claim against a country club that allowed spouses, but not domestic partners, to play golf with the member's spouse on an unlimited basis.

In administering employee benefits or policies an employer may require an employee to prove to the employer that the employee seeking the benefit in fact qualifies for the benefit as a domestic partner. Under California law, domestic partners are two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring. A domestic partnership is established when both persons file a Declaration of Domestic Partnership, and satisfy each of the following requirements:

* Both persons have a common residence.
* Neither person is married to someone else or is a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity.
* The two persons are not related by blood in a way that would prevent them from being married to each other.
* Both persons are at least 18 years of age.
* Both persons are capable of consenting to the domestic partnership, and
* Either, both persons are members of the same sex, or one or both of the persons is age 62 or older.

It should also be noted that, under federal law at the present time, employers have no legal duty to treat domestic partners as the equivalent of spouses with respect to certain types of benefit programs.

For example, certain benefits, such as retirement plans, are regulated under federal law by the Employee Retirement Income Security Act. These benefit plans are granted special tax treatment under the Internal Revenue Code. These federal statutes do not recognize the concept of domestic partnerships. Further, the Defense of Marriage Act, a federal law, defines marriage as a "legal union between one man and one woman as husband and wife" and limits the definition of "spouse" to "a person of the opposite sex who is a husband or a wife." That statute bars the recognition of same-sex marriages for any federal statute, regulation, or rule that mentions spouse or marriage. Thus, at the present time, any attempt by a state to change its law to apply to employee benefits regulated by federal law would probably be held to be invalid by the courts.

As with any other topic affecting the workplace, state and federal laws set the minimum requirements. An employer is always free to go beyond these requirements. Depending upon the needs of the business, and the composition of the work force, an employer might well be advised to take same-sex or other alternative relationships into account in making various decisions affecting workplace policies and benefits.

For further information, contact Russell Thomas at 949.752.0101 or visit http://www.employersattorneys.com
Russell J. Thomas, Jr., Attorney at Law
THOMAS & ASSOCIATES
4121 Westerly Place, Suite 101
Newport Beach, California 92660
Tel: (949) 752-0101
Fax: (949) 257-4756
Email: russ@employersattorneys.com
Web: http://www.employersattorneys.com
J.D., Harvard Law School, 1967
Specializes in Employment Law and Litigation; Offices in Southern California (Los Angeles and Orange County)

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