LEL Flash | Issue: November/December 2013

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Issue: November/December 2013


Diversity in the Legal Profession Committee Sees Positive Impact of United States v. Windsor

The Supreme Court's decision in United States v. Windsor, 133 S Ct 2675 (2013), is a boon for workplace diversity, as it allows employers to attract, retain and secure a talented workforce. Pre-Windsor, section three ("Section 3") of the Defense of Marriage Act ("DOMA") completely prohibited federal recognition of same-sex marriage. The sweeping scope of Section 3 forced employers to develop separate and often unequal systems for providing benefits to their employees with same-sex spouses. Several employers, including many represented in the ABA LEL Section, wanted to foster inclusion and avoid the administrative morass of a dual benefits regime, and attempted to equalize the landscape by following best practices suggested by LGBT rights organizations. However, DOMA made it impossible for employers to completely reconcile the inequities, which ran counter to employers' efforts to promote diversity and inclusiveness in the workplace, without incurring significant additional expense. Post-Windsor, employers are now in a better position to implement benefits policies consistent with their attracting and maintaining diversity in the workplace.

On June 26, 2013, the Windsor Court ruled Section 3 unconstitutional on Fifth Amendment equal protection grounds because it compelled the federal government to treat married same-sex couples as unmarried while recognizing the marriages of opposite-sex couples. The Court did not hold that states must legalize same-sex marriage or recognize same-sex marriages celebrated elsewhere for state law purposes. It simply mandated that same-sex marriages be recognized for purposes of federal law.

Health insurance that covers an employee's same-sex spouse is no longer subject to federal income tax. This is true even for employees living and working in non-recognition states provided the employee's marriage was performed in a state or foreign jurisdiction where same-sex marriage is lawful.

Employer-sponsored health insurance for same-sex spouses differs in part depending on whether the plans are fully-insured or self-insured. Employers with fully-insured plans must follow applicable state law. In states that recognize same-sex marriage, employers may be obliged to cover their employees' same-sex spouses, and may face exposure under anti-discrimination laws if they fail to do so. Post Windsor, self-insured employers can no longer cite DOMA's restrictive definition of marriage to justify excluding same-sex spouses. Also fully- or self-insured employers that are subject to federal COBRA are required to offer continuation coverage to employees' covered same-sex spouses to the same extent as it is offered to opposite-sex spouses.

Windsor also opened up LGBT individuals' access to their spouses' retirement plans. A married LGBT employee's spouse will be the default beneficiary of her ERISA qualified defined benefit or defined contribution retirement plan. This is true even if the married couple is domiciled in a non-recognition state. Similarly, a deceased employee's pension plan must pay a benefit to her surviving same-sex spouse if such benefit has not been validly waived by the spouse. Divorcing LGBT couples can now divide their retirement plan benefits using a Qualified Domestic Relations Order.

With respect to medical leave, the Family and Medical Leave Act ("FMLA") grants covered employees the right to unpaid leave, continued health insurance, and job protection to care for a spouse, child or parent with a serious health condition. After Windsor, the United States Department of Labor revised several existing FMLA guidance documents to remove references to DOMA, and make clear that LGBT employees domiciled in recognition states have a right to FMLA leave to care for their spouses.


Even after Windsor and the many positive changes to affecting LGBT employees, inequality remains.Employers interested in promoting diversity in the workplace should continue to pursue best practices for attracting and retaining LGBT employees. By going beyond what the law requires, employers are able to clearly voice their support for inclusion. For example, employers can choose to cover same-sex spouses under their health plans even when they are not compelled by law to do so. Companies can recognize that transition-related care is medically necessary for transgender employees and choose to offer health insurance that covers it. In states that lack such protections, employers can implement their own non-discrimination policies condemning discrimination and harassment on the basis of sexual orientation, gender identity and gender expression. Employers have made remarkable progress towards creating LGBT affirming workplaces and can accomplish the work that remains to be done.

Carmelyn P. Malalis, Outten & Golden and Elizabeth "Ez" Cukor, New York Legal Assistance Group.


Opening Page

Comments from the Chair

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Feature: Recent Developments in Pregnancy Discrimination

Flash Co-Chairs:
Jeremy J Glenn, Meckler Bulger et al | Monique R. Gougisha, Ogletree Deakins | Amy F. Shulman, Broach & Stulberg LLP | Jennifer R. Spector, National Labor Relations Board

American Bar Association Section of Labor and Employment Law
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