Are Same-Sex Couples Entitled to Share Employment Benefits?

Website Provided by

Traditionally, one benefit of marriage was being able to share in a spouse's employment benefits, like health, vision, and dental insurance. Unfortunately, many same-sex couples have struggled for years to receive the same level of benefits and even the right to be married. With more and more jurisdictions recognizing same-sex marriages, are employers now required to provide same-sex couples with the same level of benefits as heterosexual couples?

Unfortunately, in many jurisdictions the answer remains unclear. With the U.S. Supreme Court decision in U.S. v. Windsor finding the Defense of Marriage Act unconstitutional, the doors were opened under federal law to the possibility of same-sex marriages. However, states remain able to regulate marriage in their own jurisdictions, and not all have yet agreed to either allow same-sex marriages or to recognize such unions from other states.

Similarly, the question also remains open as to whether those identifying as lesbian, gay, bisexual, or transgendered (LGBT) may be considered a protected class for purposes of anti-discrimination laws. Well-established protected classes include race, ethnic origin, gender, age, and religion. Laws that treat members of these classes differently are very strictly reviewed by the courts and often overturned if found to be lacking in legitimate purpose, if there is a less-restrictive means of accomplishing the same goal, or if the law violates one's right to equal protection under the law. However, sexual preference has not long been considered a protected class, and its status as such is still not determined in some jurisdictions.

This leads to the difficult predicament many employers now face. Federal courts have now held that a law banning gay marriage was unconstitutional, but states have not all yet fallen in line with that decision. Nor has it been decisively determined if these individuals are entitled to be considered a protected class deserving of equal protection under the law, including the right to equal employment benefits as heterosexual couples. Thus, is an employer required to offer same-sex couples the same benefits as heterosexual couples?

The answer depends on the jurisdiction. Some states are now requiring it while others are not. However, given the direction of the winds of political change, it seems probable that laws protecting LGBT couples are likely to continue to spread. For companies that operate in multiple jurisdictions it may be wise to follow the laws of the most permissive states (i.e., those that offer the greatest protections of LGBT couples) in order to avoid running afoul of any particular jurisdiction's laws and to afford equal rights to all employees. Indeed, many Fortune 500 companies have already undertaken efforts to ensure equal benefits for spouses or domestic partners of LGBT employees.

For companies operating in only one state, the question will depend on the laws of that particular jurisdiction, so you should consult with your corporate counsel on the matter. However, it would also be wise to keep an eye on these laws, as it is increasingly likely that more and more jurisdictions will be requiring equal rights for LGBT individuals and couples in the near future. If you are an individual who believes that your right to share employment benefits with a same-sex partner has been denied, you may wish to speak with an attorney experienced in employment law in your jurisdiction to determine your options and best course of action.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

Find a Lawyer

Find a Local Lawyer