efits. Because same-sex couples were previously unable
to marry in many jurisdictions, many employers
offered same-sex domestic
partner benefits in an
attempt to treat same-sex
couples the same as opposite-sex couples, or as close as
possible. However, now that
same-sex couples can marry in all 50 states,
there may no longer be a need for same-sex
domestic partner benefits. In fact, in an odd
twist, it could be viewed as discriminatory
to provide domestic partner benefits to
same-sex couples and not to opposite-sex
couples. As a result, employers may want to
rethink their domestic partner benefits.
Employers should note that some state
insurance laws, which are not preempted by
ERISA, may require them to offer domestic partner benefits to same-sex couples.
Employment Opportunity Commission
(“EEOC”) that an allegation of sexual orientation discrimination inherently constitutes an
allegation of sex discrimination under Title
VII. While the EEOC’s ruling is not binding
on private employers, employers should be
aware that courts may give weight to the
Employers should also be aware that their
fully insured health and welfare plans may
now automatically cover same-sex spouses.
Employers should check with their insurers
to determine if, given the Obergefell ruling,
coverage for same-sex spouses is now
required under their health and welfare
Employers may want to consider the continued need for same-sex domestic partner ben-
Now that same-sex marriage is legal in all
50 states, employers should expect more
employees to enter into same-sex marriages,
more employees to ask for benefits for their
same-sex spouses, and, if those benefits are
not provided, more discrimination claims.
As a result of Obergefell and the recent
EEOC guidance on sexual orientation,
employers should give careful consideration
to employee benefit issues for same-sex
spouses sooner rather than later.
The ruling may require
employers to unwind years
of treating same-sex spouses
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