Equal Benefits Employers Deal With Same-sex Unions

Call it uncharted territory — both for Massachusetts law and the state’s business community.


On May 17, six months after a ban on same-sex marriage was deemed unconstitutional by the state Supreme Judicial Court, Massachusetts became the first state in the union to legalize gay unions. And that poses a new set of challenges and responsibilities for businesses across the Commonwealth, from small physicians’ offices to the human resources departments of large hospitals.

“Basically, the bottom line seems to be, however they’re treating opposite-sex couples, they have to treat same-sex couples similarly,” said Amy Royal, an attorney with Skoler, Abbott & Presser, P.C. in Springfield. And that concept extends far beyond insurance and pension benefits, also touching on maternity leave, hiring practices, and sensitivity issues in the workplace.

For an issue that tends to divides the population — as well as lawmakers — it seemed appropriate that the Supreme Judicial Court was split 4-3 in November when it struck down the Commonwealth’s ban on same-sex marriage. Still, the tone of the majority opinion reflected anything but ambiguity.

“Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family — these are among the most basic of every individual’s liberty and due-process rights,” the majority opinion stated. “And central to personal freedom and security is the assurance that the laws will apply equally to persons in similar situations.”

And with those words, the wheels of same-sex marriage were set in motion in Massachusetts, as the court gave lawmakers 180 days — until May 17 — to come up with a solution to the problem of a gay-marriage ban. That date has arrived, and a constitutional amendment seeking to replace same-sex marriage with civil unions won’t be decided by voters until late in 2006.

That means, for now, the landscape of marriage has changed.

Making History

The change in the law will have minimal effect on businesses that have long offered benefits for same-sex domestic partners, such as Baystate Health System.
“Now, with the change in the marriage law, we will be reviewing our policy regarding these benefits,” said Larry Emerson, Baystate’s vice president of Human Resources Operations and Total Compensation.

Other employers have more reviewing to do, now that a landmark court case has brought about a dramatic change.

That case originated in 2001 when seven gay couples sued the state Department of Health after being denied marriage licenses by their city and town halls. A judge threw out the case in 2002, but the couples appealed to the Supreme Judicial Court, arguing that barring them from marrying a partner of the same sex denied them access to an intrinsic human experience and violated basic constitutional rights.

But while advocates of same-sex marriage urge an equal dispensation of all employee benefits, there’s still some confusion over how equal the playing field must be.
Most notably, issues arise when it comes to federal benefits, such as those provided under the Family and Medical Leave Act, because the federal government, in the Defense of Marriage Act, defines marriage only as a union between a man and woman.

According to Julie Dialessi-Lafley, an attorney with Springfield-based Bacon & Wilson, P.C., Massachusetts has its own set of family-leave laws, which employers would have to grant equally to all types of married couples.

“It’s going to depend on how a particular federal law defines spouses,” Dialessi-Lafley said. “Most federal laws say a spouse is defined under that state’s law, so for the Family Medical Leave Act, employees in Massachusetts have to provide medical leave for spouses in same-sex marriages.”

But that isn’t the case for some other federal benefits. For example, health care plans that fall under the federal Employee Retirement Income Security Act (ERISA) would not be subject to Massachusetts’ interpretation of marriage, while most other plans would. Employers must look carefully at the type of coverage they offer, Royal said.

“Even if the plan were to be ERISA-covered, it’s possible that the plan in itself says something about a spouse being defined under state law,” she noted. “The employer has the obligation to check specific health plans.”

However, the possibility exists that an employer who wants to grant equal benefits under an ERISA plan will not be allowed to, said John Sikorski, an attorney with Robinson Donovan in Springfield.

“An employer might say, ‘I have a pension plan, and I want to give spousal benefits to all people who are married in my workforce; I think that’s fair,’” Sikorski said. “But will federal ERISA law prohibit that?”

Anne Keyser, director of public relations for Holyoke Community College, said the school will follow the guidelines of the state Group Insurance Commission in granting benefits to all married couples.

“If same-sex couples can get married, we would handle a request for family coverage for same-sex couples in the same way we would handle it for a heterosexual couple,” she said.

As for other aspects of the law, Keyser said the school has reviewed its policies to make sure all language is gender-neutral. “I can’t think of any other major changes that would occur here,” she said shortly before the May 17 deadline, “but at this point it’s a little bit of a wait-and-see situation as the state argues this out.”
Paying new attention to all written policies is becoming a common practice for employers across the state, as benefits aren’t the only concern arising from the new marriage law. Sikorski said there’s a whole range of sensitivity issues that have come up.

An even-handed approach must be taken with all employees who seek benefits, he said. For example, employers should not ask for marriage licenses from same-sex couples if they don’t do the same for heterosexual couples. And the kind of language workers use with one another can become a problem as well — seemingly innocuous phrases such as ‘that’s so gay’ could be construed as harassment.

“Part of this is going to be the education of the workforce,” Sikorski said. “It can be a politically charged subject, but there’s a line between voicing your opinion based on religious or political beliefs and harassing people.”

Last-ditch Efforts

Gay-rights advocates have typically found a more receptive audience among Democrats than Republicans, but Massachusetts’ Democratic-dominated Legislature still approved an amendment to the state Constitution banning same-sex marriage but approving civil unions, like those recognized in Vermont. That amendment will go to a vote in November 2006.

In the meantime, the Republican Romney took a harsher tone.

“Marriage is an institution between a man and a woman,” he said late last year. “I will support an amendment to the Massachusetts Constitution that makes that expressly clear. Of course, we must provide basic civil rights and appropriate benefits to non-traditional couples, but marriage is a special institution that should be reserved for a man and a woman.”

Citing the potential for chaos if thousands of marriages performed in the next two years were suddenly deemed invalid, Romney recently requested a stay on same-sex marriage from the Supreme Judicial Court until the November 2006 vote on the amendment. But Attorney General Thomas Reilly rejected the request.
Still, Romney didn’t give up. He sought emergency legislation that would allow him to appoint a special counsel who would ask the state’s highest court to delay its ruling on same-sex marriage. Romney said such a move would allow him to “protect the integrity of the constitutional process.”

However, not only did Romney not win that delay, some critics said the governor didn’t put himself in the best light.

“Are all 50 governors going to have a pet issue where they seek separate counsel?” Sikorski asked. “There are definitely two sides to this issue, but to keep pounding away, without a chance of winning, to score political points, it doesn’t look good.”

“Romney doesn’t have the power to do anything in this case,” Royal said. “It has to come through an amendment to the constitution, which will take a few years.”
That means, at least for 30 months, same-sex marriages will be performed across the Commonwealth, and businesses will have to provide many of the same benefits to gay and lesbian couples as they do for heterosexual families.

And that means explaining those benefits clearly to all groups, Dialessi-Lafley said.

“Many companies have benefits in place but don’t really make them available to employees,” she noted, explaining that the issue is one of communication; employees cannot take advantage of programs they are not aware of.

Of course, companies that don’t want to pay out additional benefits could always end them across the board. Dialessi-Lafley noted, however, that suddenly taking benefits away from employees could cause a more serious set of problems related to morale, employer-worker relations, and recruiting.

Sikorski’s own feeling is that the greatest conflicts in this new legal landscape surrounding same-sex marriage will not center on employment benefits and workplace discrimination. Instead, the larger battles will be played out on a nationwide scale, as Massachusetts law comes into conflict with the federal Defense of Marriage Act.

“The rub is going to be with things like health care proxies and the rights of parents,” he said. “If someone gets in an accident out of state, what about visitation rights and access to health records? And the tax and financial-planning issues are enormous. If one spouse dies, will his Social Security be available for the other? There’s a whole raft of issues here.”

Sensitive Subject

The issues are indeed complex, Dialessi-Lafley said, but they need to be discussed at length. Employers need to do two things, she explained: desensitize themselves to any stigma that might exist in the workplace about the issue of homosexuality, and also approach the topic with sensitivity among employees, always being careful not to make anyone feel singled out.

“We’re not a society where it’s always easy to come right out and have some of these conversations about private life,” she said. “It’s harder to do for some people than others.”

However, Dialessi-Lafley added, with the confusing maze of rules that have arisen — many of them conflicting because of state and federal differences — employers need to be well-versed in these topics.

“It’s interesting to have this very vigorous cross-fertilization,” Sikorski said. “This is an issue that really slaps you in the face with some of the limitations of having 51 different systems of government. In some ways, that has been a great bastion of individual liberties, giving people local control, but in situations like this, it can turn into a nightmare, and you wonder, if we had to do it all over again, whether we’d have these 51 systems.”

One thing is for sure. Massachusetts’ system of government has made the Commonwealth the only place in the Union where same-sex marriage is legal — at least for the time being. And it’s clear that employers and employees alike must adjust to the changes if they want to stay on the good side of the rapidly changing law.