Despite the fact that same-sex marriages are not permitted in California, employers should note that same-sex couples who are registered domestic partners have workplace rights nearly equivalent to heterosexual married couples. Couples must register to achieve this status.
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Sexual Orientation Discrimination
Update
Same-Sex Couples Retain
Employment Law Rights
Despite Supreme Court Ruling
By Christopher W. Olmsted
The California Supreme Court issued a ruling in late May upholding Proposition 8. Does this ruling affect employee rights in the workplace?
Proposition 8 was an initiative measure approved by a majority of California voters at the November 4, 2008 election. Known as the “California Marriage Protection Act” it added section 7.5 to article I of the California Constitution, providing: “Only marriage between a man and a woman is valid or recognized in California.” The measure took effect on November 5, 2008. The constitutional amendment had the effect of overruling an earlier California Supreme Court decision holding that same-sex couples had a constitutional right to marry.
Supreme Court's Decision
The May 2009 case, titled Strauss v. Horton did not directly address the question of same-sex marriage. Rather, it addressed a technical constitutional question regarding Proposition 8: was it an “amendment” or a “revision” to the California Constitution? In a nutshell, if it was a revision, the wrong procedure was used to enact it and the law would be invalid.
The court validated Proposition 8 by deeming it to be an amendment. The rationale behind the decision isn’t particularly interesting unless you are a legal scholar.
California Employee Rights Remain Strong
Despite the fact that same-sex marriages are not permitted in California, employers should note that same-sex couples who are registered domestic partners have workplace rights nearly equivalent to heterosexual married couples. Couples must register to achieve this status.
In 2003, the California legislature enacted the California Domestic Partner Rights and Responsibilities Act (“DPA” for short). Effective January 1, 2005, the law provides that registered domestic partners “have the same rights, protections and benefits” as are granted to spouses “whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law.“ (See California Family Code § 297.5(a)).
Same sex-couples become registered domestic partners by filing paperwork with the Secretary of State. It has been reported that over 48,000 couples have registered, though not all are same-sex.
Legal commentators seem to agree that Proposition 8 does not affect rights under the DPA. The DPA creates rights that are parallel to marriage but it does not address the right of same-sex couples to marry.
Accordingly, with respect to California law, registered domestic partners have nearly identical workplace rights as married couples. It is important to note, however, that this is not the case under federal law. The Defense of Marriage Act (DOMA), enacted in 1996, defines “marriage” and “spouse” for purposes of federal law. DOMA provides that a “marriage” can only be a legal union between one man and one woman as husband and wife. The law also provides that the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
Family Leave
California Family Rights Act (CFRA) allows registered domestic partners to take up to 12 weeks off to care for their partner who has a serious medical condition. Note that the federal FMLA does not offer protected leave to such individuals, and that time taken to care for a domestic partner arguably does not count against the 12 week FMLA leave entitlement.
Paid Family Leave
California Paid Family Disability Leave Insurance, administered by the EDD, permits employees to receive paid leave for up to six weeks of leave in any 12 month period to care for certain seriously ill family members, including domestic partners.
Kin Care Sick Leave
California’s kin care law, found in Labor Code Section 233, provides that if the employer provides paid sick days off, then it must allow employees to use up to half a year’s accrual to attend to an ill parent, child, spouse or registered domestic partner.
Non-Discrimination>
The California Fair Employment and Housing Act prohibits workplace discrimination and harassment based on several protected categories, including sexual orientation and marital status. Registered domestic partners have equivalent protection.
Employers should consider extending all policies and practices to registered partners. What about company functions like business dinners, travel or other events where spouses are included? Consider employee discount programs and company leave policies (where not already required by law).
Benefits
Applying the Domestic Partner Act to employee benefits is not so straightforward because federal law, particularly ERISA and the IRS code, intercede. Under federal law, registered domestic partners do not receive favorable tax treatment under health and welfare plans such as Section 125 plans, pensions, and retirement accounts. Benefits for domestic partners may be taxable under federal law, though not for purposes of California tax law. One exception would be where the partner otherwise qualifies as a “dependent” under federal law.
Group health insurance is another exception because federal law permits state regulation of insurance. For example, if group health insurance plan coverage is offered to spouses, it should also extend to registered domestic partners. If premiums are paid for spouses, the same must be given to partners.
COBRA
COBRA is a federal law and therefore the DPA does not apply. COBRA regulates plans for employers of 20 or more employees. However, the DPA apparently does affect Cal-COBRA rights. Cal-COBRA applies to companies with 2 to 19 employees. Covered companies should observe Cal-COBRA procedures when a qualifying event affects a domestic partner.
Cal-COBRA also provides 18 months of extended coverage, in addition to 18 months under COBRA, to companies with 20 or more employees. However it is generally understood that such rights to not extend to domestic partners.
Pre-Proposition 8 Marriages
The Court validates the estimated 18,000 same-sex marriages that took place before Proposition 8. Companies who employ these individuals may need to seek legal advice with respect to workplace rights and benefits.
Conclusion
The Court’s ruling does not appear to affect the rights of registered domestic partners in California. Employers should continue to offer equivalent rights and benefits to such individuals.
More Legal Update articles.
Download entire June 2009 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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