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same sex marriage
federal employment law
small business administration
same sex couples
sexual orientation
How The Supreme Court's Same - Sex Marriage Rulings Affect Small Businesses
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How the Supreme Court\'s Same   -   sex Marriage Rulings Affect Small Businesses

On June 26th, the U.S. Supreme Court, in United States v. Windsor, declared unconstitutional Section 3 of the federal Defense in Marriage Act (DOMA), which prohibited the federal government from recognizing marriages between same-sex couples. Section 3 defines “marriage” as a union between a man and a woman, and “spouses” as a husband or wife of the opposite sex, excluding same-sex partners.

In a second case, Hollingsworth v. Perry, the Court ruled that citizens challenging a California state court decision that made same-sex marriage legal (which overturned a California ballot initiative called Proposition 8) lacked standing to do so (i.e., authority). The Court’s decision makes same-sex marriage legal again in California.

The Windsor decision does not make same-sex marriage the law of the nation. The Court has allowed such a determination to remain with the states. Same sex marriage is lawful in only 13 states and the District of Columbia: Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and California,

The Small Business Administration definition of a “small business” is dependent upon the industry, the average number of employees for the preceding 12-months, and sales averaged over 3-years. The range is: 1 to 1,500 employees and up to $21.5M in sales.

For small businesses, like large businesses, the impact of the Windsor decision is in the application of employment laws. These laws apply to employers based upon the size of an employee population. Applicability ranges from employers with 1 to 50 employees.

No federal employment law prohibits discrimination on the basis of sexual orientation. However, more than 21 states and numerous municipalities prohibit discrimination based on sexual orientation, marital status, or civil-union status.

The most direct application of the Windsor decision may be to the following employment laws:

• Title VII of the Civil Rights Act of 1964: Prohibits employment discrimination and retaliation based on race, color, religion, sex, and national origin. Title VII also prohibits harassment and pregnancy discrimination. (15 or more employees)

• Employee Retirement Income Security Act (ERISA): Prohibits improper administration of specific types of employee benefits for an employee and the employee’s spouse or dependents, including health benefits, 401(k) plans, and pension plans. (20 or more employees)

• Family and Medical Leave Act (FMLA): Prohibits employer from interfering with family or medical leave rights that the law provides for an employee and his or her spouse or other “covered” family members. (50 or more employees)

• Consolidated Omnibus Budget Reconciliation Act (COBRA): Requires health benefit continuation for a spouse or dependent. (20 or more employees)

• Similar state employment laws.

The Windsor decision now may also require that employers avoid discrimination in the application of policies and practices like bereavement leave, company gatherings, company trips, and family discounts. Said differently, failing to treat an employee’s same-sex spouse or civil-union partner the same as an opposite-sex spouse, in states where such relationships are recognized, could lead to claims of sex discrimination.

Over 1,000 federal laws contain provisions applicable to spouses. We can expect additional governmental and judicial guidance in coming months.


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