Discrimination against same-sex spouses

[Guest clarkie604]

I have a client with employees in California. They generally don't provide medical coverage for same-sex spouses, but they just got a request for a California employee. If California employers offer spousal coverage, do they have to cover same-sex spouses or can they limit coverage to opposite-sex spouses.

Any thoughts would be great. Thanks!

[QDROphile]

Federal law does not require coverage of same sex spouses.

[Lou S.]

If they are legaly married in California (which now allows same sex marriage) and they offer benefits for opposite sex marriages but not same sex marriages I would think they would be opening themselves up to test case discrimination law suit but I am not a lawyer so take that for what it is worth.

[Guest clarkie604]

Thanks all. I'm pretty sure it would be discriminatory under California's employment non-discrimination statute (FEHA), but would like to find some specific guidance if it's out there. I'm thinking it's not.

[Chaz]

The California statute may be preempted by ERISA (although research would have to confirm that).

[FormsRstillmylife]

After the demise of DOMA and the Supreme Court reasoning behind it, ERISA cannot define spouse. If California law says this is the "spouse" and federal law cannot define "spouse," the employer's plan cannot cover "spouses," but exclude same-sex spouses. The plan could cover dependents and non-dependents living in the residence who are of the opposite sex of the employee.

There will be a lawsuit.

[My 2 cents]

An IRS attorney, speaking for himself at a recent conference, did say that there were no federal laws compelling coverage of a same-sex spouse, but he did say that litigation would be likely (but that it would not be litigation over the application of the Internal Revenue Code).

Considering that litigation is underway in a number of states (including Mississippi) challenging state laws disfavoring same-sex marriage, permitting spousal coverage for opposite-sex couples but not for same-sex couples (especially in a state permitting such marriages) would appear to be an invitation to expensive litigation (with the sponsor having what may be an uphill battle to defend its position).