Considerations for US Employers Post-DOMA

by Sheppard Mullin Richter & Hampton LLP

When the Supreme Court issued its opinion in U.S. v. Windsor on June 26, it invalidated the federal definitions of “spouse” and “marriage,” and, in so doing, altered employer obligations with respect to same-sex marriages. Although the media coverage of this decision has understandably focused on other implications of the decision, it inevitably creates new challenges for employers. In this post, we will provide insight into how the decision will affect employers moving forward and provide suggestions as to how employers can best prepare in the face of new areas of uncertainty created by this decision. 

The Windsor Decision 

Section 3 of the Defense of Marriage Act (“DOMA”) defined the terms “marriage” and “spouse,” as used in federal law and regulations, to exclude same-sex unions. This section was challenged in a suit brought by Edith Windsor seeking a refund of federal estate taxes she was required to pay following the death of her wife. The couple had been married in Ontario, Canada and the marriage was recognized by New York, the state in which they lived. Notwithstanding her status as a legal spouse under state law, Ms. Windsor was required to pay estate taxes because she did not qualify for the “surviving spouse” exemption under DOMA’s definitions.

The Court’s decision to strike down DOMA’s definitions of “spouse” and “marriage” relied on three principle arguments. First, states traditionally possess the right to regulate domestic relationships however they see fit without interference from the federal government—the federal definition of spouse interfered with state abilities to determine what marriages are entitled to recognition. Second, DOMA created inconsistent state and federal regimes with respect to different kinds of marriages allowed within the same state. Lastly, these contradictory regimes undermined the dignity of same-sex marriages. Understanding and accounting for these rationales is helpful in anticipating how courts and agencies are likely to respond to the nullification of the federal definitions of “spouse” and “marriage.”

Immediate and Future Impacts

While there is much we do not know about the effect of the Windsor decision, several implications for employers are already clear:

  • Family and Medical Leave Act (“FMLA”): Employers will now be required to allow an employee to take FMLA leave to care for a same-sex spouse if the employee resides in a state that recognizes the same-sex marriage as legal. This applies regardless of whether the employer is located in a state that recognizes same-sex marriage because the FMLA defines “spouse” as a husband or wife recognized under the law of the state in which the employee resides. Additionally, because the FMLA defines “spouse” in this way, even if an employer is located in a state that recognizes same-sex marriage, the same-sex spouse of an employee who resides in a jurisdiction that does not recognize same sex marriage will not be considered a “spouse” under the FMLA. Thus, unless we receive administrative or judicial guidance to the contrary, if the employer provides leave to such an employee to care for their spouse, the employer should not deduct it from the employee’s FMLA leave bank.
  • Health Benefits: Under federal law, same-sex spouses will be eligible for the health coverage on the same tax-free basis as opposite-sex spouses. However, even if same-sex spouse health benefits are exempted from federal taxation, they may still be subject to state taxes on the benefit.
  • COBRA: Health benefits under programs like COBRA will now afford the same rights and benefits to married same-sex couples as it has traditionally afforded opposite-sex married persons.
  • Pensions and Benefits Plans: Many employer pension and benefit plans were tailored to reflect the definition of “spouse” under DOMA. In the post-DOMA world, same-sex spouses will be entitled to receive the same default benefits as other spouses such as requiring spousal consent to name a non-spousal beneficiary of the benefit.

There are, however, still many open questions. Perhaps the foremost outstanding question is what state law will govern when determining who qualifies as a “spouse” under the myriad federal statutes that previously used DOMA’s definition. Will federal agencies look to the state of celebration of a marriage or to the state in which the employee resides? Alternatively, they could look to the laws of the state in which the employee is employed. Under the first approach, federal benefits would be provided to same-sex spouses legally married in any of the 14 jurisdictions[1] that recognize same-sex marriage—regardless of whether the state in which they reside or in which they are employed recognizes same-sex marriage. Under the second approach, the employer would be required to offer federal benefits if the law in the employee’s state of residence recognizes the marriage, again, regardless of whether the law in the jurisdiction where the individual is employed recognizes same-sex marriage. Under the third approach, employees residing in a state that recognizes their marriage could still be denied benefits if they worked for an employer in a state that does not. For example, the spouse of an employee legally married and living in Maryland but working in Virginia would not be eligible for the relevant federal benefits.

A question that arises with respect to benefit plans governed by ERISA is which state law will govern for the purposes of benefit accrual and distribution—e.g., will it be the employee’s state of residence when the benefit accrues or when it is distributed? Given that the Supreme Court was concerned that DOMA was discriminatorily depriving legally married same-sex couples of federal benefits, it seems likely that federal agencies will attempt to give the broadest possible interpretation of “spouse.” However, the fact that Section 2 of DOMA—which allows states to refuse to recognize same-sex marriages performed under the laws of other states—was not challenged in Windsor also implies that federal agencies will need to find an interpretation that respects states’ decisions not to recognize same-sex marriage. This tension makes it highly likely that we will see more litigation over same-sex marriage in the near future.

Another outstanding question that would have serious implications for employers is whetherWindsor will be applied retroactively. For example, will employers be required to cover medical expenses that were previously incurred by an employee’s same-sex spouse or will they only be required to offer prospective coverage? The first possibility would result in significant unanticipated expenses for employers, as well as administrative difficulties. These are just some of the questions that need to be answered before we will understand the full impact of Windsor.

Yet, even in the face of all this uncertainty, employers can and should begin preparing to make changes in response to Windsor. Employers should begin reviewing their employee policies and benefit plans now to identify areas of potential change. Employers should start making changes now in areas such as the FMLA where it is already clear how the law applies. Even where that is not the case, employers can flag potential areas of change to facilitate compliance once guidance is issued.

*Megan Grant is a law clerk in Sheppard Mullin's Washington, D.C. office.

[1] California, Connecticut, Delaware, the District of Columbia, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington have already legalized same-sex marriage. Laws permitting same-sex marriage in Minnesota and Rhode Island go into effect August 1, 2013.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Sheppard Mullin Richter & Hampton LLP | Attorney Advertising

Written by:

Sheppard Mullin Richter & Hampton LLP

Sheppard Mullin Richter & Hampton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.