On May 21, 2014, the federal district court in Harrisburg decided Whitewood v. Wolf. The District Court held that it was unconstitutional for Pennsylvania to either prohibit same-sex couples from becoming married or to void same-sex marriages that were legally entered into in other jurisdictions. The Court’s holding in Wolf was only intended to restrict governmental action, and did not pertain to the actions of private citizens. Nonetheless, private businesses and employers in Pennsylvania may be affected.
After United States v. Windsor, where the U.S. Supreme Court struck down parts of the Defense of Marriage Act, same-sex married couples cannot be denied federal benefits otherwise given to married individuals. One federal law that was affected by this decision was the Earned Retirement Income Security Act (ERISA) of 1974, which governs most private sector employee benefit plans and generally requires employers to provide spousal benefits. Having legalized same-sex marriage in Pennsylvania, Wolf may result in requiring private employers and businesses to extend spousal benefits to same-sex married couples as well.
ERISA’s application in a post-Windsor, post-Wolf world is far from certain, and the only federal district courts to provide instruction on the matter reside in different Federal Circuits. Nonetheless, the case law indicates that private employers may be able to exclude same-sex spouses from benefits. In Cozen O’Connor, P.C. v. Tobitz, the federal district court in Philadelphia held that spousal benefits to a deceased’s same-sex spouse was required following Windsor. However, the spousal plan at issue in Tobitz did not explicitly exclude same-sex spouses. Noting this distinguishable element of the plan involved in Tobitz, in Roe v. Empire Blue Cross Blue Shield, a federal district court in New York held that a self-insured health plan that specifically excluded same-sex spouses from its definition of “spouse” did not run afoul of ERISA.
As Roe and Tobitz indicate, employers that wish to exclude same-sex married couples from receiving spousal benefits should reevaluate the language of their healthcare and spousal benefit plans. Specifically tailored language and definitions within such plans may serve to exclude same-sex spouses and domestic partners from coverage. However, employers and businesses would be wise to pay specific attention to the local ordinances of the municipality in which they reside. Although Pennsylvania has not enacted legislation prohibiting employment discrimination based upon sexual orientation, there are currently 32 municipalities in Pennsylvania that have local ordinances prohibiting certain forms of sexual-orientation discrimination. Looking at the plain language of these local ordinances and case law can provide employers with an idea as to what forms of exclusion will be permissible in their municipality and what business conduct falls within the definition of “employment.”
For additional questions or concerns about how the federal district court’s opinion might affect business practices in Pennsylvania, contact the Burns White Employment group.