Civil Union Bill Becomes Law: How it Affects Employers

Kathleen Furey McDonough, Lindsay O. Clizbe
Delaware Law Weekly

On Wednesday, May 11, 2011, in a ceremony at the Queen Theatre on Market Street in Wilmington, Governor Jack Markell signed into law the Civil Union and Equality Act of 2011 (the “Act”), which will take effect on January 1, 2012.  The Act establishes same-sex civil unions in Delaware.  It also recognizes legal unions validly entered into by two individuals of the same sex in other jurisdictions as civil unions under Delaware law, so long as the legal union meets the eligibility requirements of the Act and provides similar rights, benefits, protections, responsibilities, and duties as civil unions in Delaware.  Such valid legal unions need not have been termed civil unions when entered into to be considered civil unions under Delaware law.

The Act amends a number of provisions in Delaware law.  Anywhere terms such as “dependent,” “family,” “husband and wife,” “immediate family,” “next of kin,” “spouse,” “stepparent,” and other like terms appear in the Delaware Code, administrative rules or regulations, court rules, governmental policies, common law, court decisions, or any other sources of law or equity in the State of Delaware, those terms now will be defined to include parties to civil unions.  Likewise, where Delaware law refers to marriage or marital status, those terms will now be deemed to include civil unions or civil union status.

Employers should be aware of how the Act will affect their policies and procedures.  The Act entitles parties to civil unions to all the same rights, protections, and benefits afforded to married persons.  This means that employers who offer benefits to the spouses of their employees will be required to extend those benefits to the same-sex partners of employees entered into valid civil unions.  This includes any death benefits provided to the widow or widower of a deceased employee.  Additionally, if employers provide benefits for the stepchildren of their employees, they will be required to offer identical benefits to the stepchildren of employees entered into valid civil unions. 

In addition to providing benefits for the same-sex partners of employees who are parties to a civil union, employers must be mindful not to discriminate against employees for entering (or choosing not to enter) a civil union.  Delaware law already prohibits discrimination in employment on the basis of sexual orientation.  It also prohibits discrimination based on marital status.  The Act will extend the prohibition on discrimination based on marital status to civil union status, so employers will be banned from discriminating based on not only an individual’s sexual orientation, but also on that individual’s decision to enter or not enter a civil union. 

Many interesting legal issues will arise from the Act; many of these issues will involve employer-provided benefits.  For instance, some employers currently offer benefits to the unmarried same-sex partners of their employees.  These employers may define eligible dependents as including the employee’s spouse, same-sex domestic partner, or dependent child(ren).  Under the Act, employers extending benefits to spouses must also extend benefits to parties to a civil union.  If employers do not modify their policies, however, and continue to extend benefits to domestic partners (i.e. two individuals of the same sex who have not entered into a civil union), these employers could face claims of reverse discrimination.  Because same-sex couples will have the option under the Act of entering into civil unions that would afford all the legal benefits of marriage, employers who continue to offer benefits to same-sex partners that have not entered into civil unions but do not offer those same benefits to opposite-sex partners that have not married could be accused of discriminating against heterosexual couples.

As long as the federal Defense of Marriage Act (“DOMA”) remains on the books, there will always be a difficult interplay between it and state laws recognizing legal unions between same-sex individuals.  Employers will still not be required to provide federally-mandated benefits to the same-sex partners of their employees, even if entered into a valid civil union.  While the Act does not (and cannot) change the non-recognition of legal unions between same-sex individuals contained in federal law, it extends as many benefits to the parties to same-sex civil unions as possible.  The Act provides that to the extent state law adopts, refers to, or relies upon any provision of federal law that would result in parties to a civil union being treated differently than married spouses, the state law must treat parties to a civil union as if federal law recognizes civil unions.  In other words, while federal law still does not recognize same-sex civil unions, state laws that refer or relate to those federal laws must nonetheless recognize valid same-sex civil unions.

One example of this interplay involves the Family and Medical Leave Act (“FMLA”).  The FMLA provides for leave from employment in circumstances such as the birth or adoption of a child or the serious health condition of a spouse, child, or parent.  States and employers are free to create their own FMLA laws and policies that provide more expansive protections than those provided for by federal law.  Because of DOMA, the federal version of the FMLA does not recognize same-sex partners as spouses.  Under the Act, however, employers enacting their own versions of the FMLA must recognize parties to a civil union as spouses.

The Act also provides rules for construction to aid in the interpretation of the Act.  One such rule provides that the Act “shall be broadly construed to accomplish its intended purpose.”  Taken together with several other broad provisions of the Act, this section demonstrates the General Assembly’s commitment to extending as many protections as possible to same-sex individuals entering into civil unions.  When in doubt as to whether the Act requires the extension of benefits to the same-sex partners of employees who are validly entered into a civil union, employers should err on the side of extension of benefits.

Reprinted with permission from 6/29/2011 issue of the Delaware Law Weekly© 2011 ALM Media Properties LLC. Further duplication without permission is prohibited. All rights reserved.

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