More than half a dozen states are expected to revisit bans on same-sex marriage in the coming year, and gay-rights advocates are urging employers nationwide to retain domestic-partner benefits even if marriage for gays and lesbians becomes legal in their state.
They warn that the mishmash of state and federal employment and marriage laws can cause unintended consequences for same-sex couples.
A handful of employers in states where same-sex marriage is now legal have quietly dropped domestic-partner benefits and instead offer the same benefits to the legal spouses of all employees. They cite the move as one that levels the playing field for all workers.
But without federal recognition of same-sex marriage or a federally guaranteed workplace protection law, companies should keep offering domestic-partner benefits, says Deena Fidas, deputy director of the Workplace Project at the Human Rights Campaign, a civil rights group for lesbians, gays, bisexual and transgender people in Washington.
"It's not as straightforward as one might think," Fidas says. Opposite-sex and same-sex marriage are still not an "apples-to-apples comparison," she says.
Fidas cited an example of a gay couple living in New York, where same-sex marriage is legal, who marry and then later move to Florida. Florida is one of 29 states where employees can be fired because of their sexual orientation. A same-sex marriage certificate is documentation of a relationship that could be grounds for termination, she says.
"Just because an employer is operating in a marriage state, an employee might not live in a marriage state," Fidas says.
Same-sex marriage became legal in New York in July 2011. At the time, some employers in the Empire State said they planned to drop domestic-partner benefits. Raytheon Co., a defense contractor based in Waltham, Massachusetts, has stopped offering domestic-partner benefits to employees in New York and Massachusetts, where gay marriage is legal.
Kristyn Lao, a spokeswoman for Raytheon, says in an email that the company has "has consistently practiced an equitable approach to benefits eligibility for heterosexual and for same-sex partner employees."
"Like many other employers in states where gay marriage has been legalized, we have thoughtfully communicated our policy of providing continuous access to spousal benefits for couples choosing to legally marry," Lao says, declining to discuss the matter further.
Helen Darling, president of the National Business Group on Health, says that companies dropping domestic partner benefits are in the minority.
"Most of our members are saying, 'We're not going to turn off the switch,' " Darling says.
For one reason, employers working in multiple states find it is very complicated to halt benefits for some employees and not others, Darling says. "Benefits move slowly," she says.
Some 82 percent of large employers offer domestic-partner benefits, while 53 percent cover partners in civil unions, according to a July 2011 survey of 62 large employers by the National Business Group on Health. And 52 percent offer opposite-sex domestic partner benefits, the survey found.
Six states and Washington have authorized same-sex marriage. Gay-marriage ballot measures are pending in four states, and six others could consider legislation on the topic next year, the Human Rights Campaign says. Some 54 percent of Americans support gay marriage, according to a June 2012 poll by CNN, which concludes that attitudes about sexual orientation are changing and support for gay marriage rights is growing.
In July, the Obama administration made it easier for domestic partners of federal employees to receive a share of retirement funds, extend health- and dental-benefit eligibility to the children of an enrollee's partner. The administration's lawyers have also asked for equal benefits for legally married gay couples in two Supreme Court cases expected to be reviewed in the fall.
The 1996 Defense of Marriage Act prohibits federal agencies from recognizing same-sex marriages or extending health or other benefits to same-sex spouses of federal employees.
Rebecca Vesely is a writer based in San Francisco. Comment below or email firstname.lastname@example.org.