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New York Employer Must Recognize Same-Sex Marriage Performed Outside of New York

Employment law and benefit questions arise as New York appellate court upholds the right of a same-sex couple married outside of New York to have their marriage recognized in New York.

2/8/2008

Open PDF: New York Employer Must Recognize Same-Sex Marriage Performed Outside of New York

By Joseph A. Carello and Brian Kopp

A New York Appellate court upheld the right of a same-sex couple married outside of New York to have their marriage recognized in New York. New York does not currently provide same-sex couples with the ability to marry in New York. Other states (e.g., Massachusetts) and countries, such as Canada, however, do allow such marriages. Recently, the Appellate Division, Fourth Department, ruled that New York will honor the marriage of same-sex couples legally married outside of New York. Furthermore, the intermediate appellate court ruled that an employer’s denial of health care benefits to the same-sex spouse of an employee violated New York Human Rights Law § 296(1)(a), which prohibits employers from discriminating against employees on the basis of sexual orientation.  Martinez v. County of Monroe (4th Dep’t Feb. 1, 2008).

Patricia Martinez was an employee of Monroe Community College (“MCC”), located in Rochester, New York. In 2004, Martinez married her same-sex partner, Lisa Ann Golden, in Ontario, Canada.  After the marriage, Martinez applied to MCC for spousal health care benefits for Golden. Although MCC provided health care benefits for opposite-sex spouses, the College’s Director of Human Resources refused to extend health care benefits to Golden on the basis that Martinez/Golden marriage was not recognized in New York. 

Martinez filed suit, alleging that MCC and its Director of Human Resources violated the Equal Protection Clause of the New York’s Constitution and the New York Human Rights Law. A trial court dismissed the case, concluding that the marriage was not entitled to recognition in New York.

In a unanimous opinion, the Appellate Division reversed the trial court, ruling that, since Martinez and Golden were legally married in Ontario, their marriage was entitled to recognition in New York.  The court then concluded that by refusing to recognize an employee’s valid same-sex marriage, MCC and its Director of HR had violated New York’s prohibition of discrimination based on sexual orientation. 

Employers should take note of this decision. The decision requires New York employers to recognize the marriage of same-sex individuals married outside of New York, which will have many ramifications. For example, many employment benefits extended to opposite-sex married couples will need to be extended to same-sex married couples. 

The fact that the employer in this case was a public employer leaves open the question of whether a private employer could raise a viable defense when the requested benefits are covered under a self-insured plan governed by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). Unlike public sector employer benefit plans, ERISA applies to many private welfare benefit plans, and ERISA generally preempts state laws, such as New York’s Human Rights Law. In Shaw v. Delta Airlines, 463 U.S. 85 (1983), the Supreme Court explicitly upheld an employer’s defense that ERISA preempted the Human Rights Law’s prohibition on pregnancy^[1] discrimination, and thus the employer could not be compelled to provide disability benefits due to pregnancy.  Therefore, private employers may not be required to extend ERISA-governed benefits under a self-insured plan to same-sex spouses. In fact, under the Defense of Marriage Act, same sex-marriages are not recognized for purposes of federal law.

Fully-insured benefits plans are governed by state insurance laws that generally are not preempted by ERISA. Coverage of same-sex spouses under insured plans will depend, in part, on the insurance carrier’s interpretation of what flexibility it can offer employers. This means that employers may need to consult their insurance carriers on how they can or will handle same-sex spouses under these plans.

Here are some thoughts that New York employers should consider when addressing this issue:

• First, employers should consider making a list of all of their benefits plans and determine which plans offer special features or rights to spouses. You may be surprised at the length of this list and the special rights spouses enjoy. Spousal benefits under plans that are not subject to ERISA (e.g., bereavement policies and educational assistance programs) should be extended to an employee’s same-sex spouse.
• Second, for spousal benefits offered under a self-insured plan subject to ERISA, employers should consider which, if any, of these plans, rights or features should be extended to same-sex spouses. An employer is not required to extend benefits under self-insured ERISA plans to same-sex spouses. This process can involve some soul-searching, as it has implications to the employers’ corporate culture, and employers will likely find individuals who have strong feelings on both sides of the issue. In making this decision, issues that employers should consider include:
  • How are your competitors handling same-sex marriages? Is this a benefit that you need to offer to remain competitive?
  • What is the cost of extending benefits to same-sex spouses? Assuming most employers’ experience with domestic partner benefits is an appropriate indicator, this cost is likely to be low.
• Third, once an employer decides how it wants to handle this issue, it should make sure that its plan documents and employee communications align with this policy decision. Many employers will find that they will need to amend their plan documents to reflect the policy decision. For example, if an employer does not want to extend a benefit to a same-sex spouse, it will be important that the plan state that it does not cover those individuals. This policy should also be clearly communicated to employees to avoid any misunderstandings.

It is unclear whether MCC will appeal this decision. This is an evolving area of the law, so stay tuned for further developments.

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1. Since this ruling, federal law now prohibits pregnancy discrimination by employers. [back to reference] 

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The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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