HR begins to confront workplace implications of same-sex marriages

While politicians and religious leaders debate the moral aspects of same-sex marriage, HR professionals are left with a much more practical question: What do you do if an employee in a same-sex relationship presents documentation of a marriage and demands to be granted the benefits, rights and privileges accorded to a male/female couple?

The Human Rights Campaign (HRC), a group that lobbies lesbian, gay, bisexual and transgender issues, estimated from various news reports that 6,043 same-sex couples had been married in the United States as of March 30. Same-sex marriages have been performed in San Francisco; New Paltz, N.Y.; Sandoval County, N.M.; Multnomah County, Ore.; and Asbury Park, N.J.

HR professionals in these areas are at the epicenter of the confusion regarding same-sex marriage documents and their ramifications for their organizations. Examining the issue now will put HR professionals in a proactive, rather than reactive, position, said lawyers and HR experts. Amid uncertainty about the legal issues, many recommend consulting one's corporate counsel.

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In the meantime, "if an employee shows up in an HR professional's office, everyone is going to have to take a deep breath and say, 'I'll get back to you,'" said Linda F. Magyar, SPHR, 2003-04 state director of the SHRM California State Council and HR director at Pillsbury Winthrop LLP.

The HR response to same-sex marriage was at the top of the state council's agenda at its Feb. 29 meeting. Because HR professionals in California are facing the issue sooner than those in most other states, developing advice for SHRM members in the state was of pressing concern to the council.

Beginning in 2005, a California law, the Domestic Partner Rights and Responsibilities Act, will grant registered domestic partners nearly all of the rights, benefits and obligations currently available only to spouses under state law. Because of its passage, HR professionals have been tasked with examining company benefits plans and HR policies regarding domestic partners, said Magyar.

For many California employers, the issue could be a moot point, said Magyar. Many large- and medium-sized employers already offer domestic partners benefits packages that are almost equal to the benefits offered to traditional couples. There are some exceptions and restrictions--for example, federal regulations prohibit employees from using pre-tax dollars to pay for coverage of a domestic partner.

As of March 12, HRC reported that Multnomah County, Ore., had married 2,000 same-sex couples. Dan Tabizon, SPHR, chair of the SHRM Oregon State Council, said that his group held a meeting March 5 to discuss the issues, including the legal status of the surviving spouse of a same-sex couple, as well as retirement benefits and life insurance.

"We realized that this is not something we can address at this time," said Tabizon. "We are looking to the state Supreme Court for guidance."

Questions Prevail

Few experts claim to be sure how to react to the same-sex marriages--many of which are being challenged in court or are being termed invalid by various state and local government officials.

David A. Copus, counsel at Washington, D.C.-based law firm Jones Day, suggested that HR professionals begin by identifying and addressing key questions, such as: Are we in Massachusetts, where the Supreme Court has upheld gay marriage? Are we in Vermont, a state with civil unions? What are the local ordinances? Are protections in place based on sexual orientation?

"This raises a lot of questions, and it is very unclear," said Peter Petesch, an attorney with Ford & Harrison LLP, in Washington, D.C. "Anyone who says they have the answers is deluding themselves."

Petesch agreed with Magyar that the issue is probably moot for companies with domestic partner benefits in place. For companies that do not offer domestic partner benefits, consultation with a tax attorney could help, he said.

For some people involved with the issue, there are no questions.

"From our perspective, every marriage, whether between same or opposite sex, should be treated equally," said Lara Schwartz, an attorney with the HRC. "Our position is to provide benefits if that is consistent with your insurer's offerings." Schwartz acknowledged that the "legal obligation to provide equal coverage will be spotty from place to place," depending on local ordinances.

But Bill Murray, spokesman for the Washington, D.C.-based Family Research Council, which opposes same-sex marriages, said that HR professionals will not have to honor documents for same-sex marriages: "There is not a single state--with the exception of the pending action in Massachusetts--that has legalized same-sex marriage."

At the SHRM California State Council meeting, "we had a lot of different viewpoints," Magyar said. The council decided that, "as an HR professional, it is not our job to enforce a moral structure in our organization. We have compliance issues, and we need to uphold the law. We have a lot of hats that we must wear, but moral structure is not one of those hats."

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