View from HR: Gay marriage ruling will raise issues for NC employers, employees

Same-sex marriage became legal in North Carolina on Oct. 10. Marriage licenses were issued that day to same-sex couples. Changes will come to the workplace as a result.

Marital status affects individual rights under nearly 1,000 federal rules, statutes and orders. Employer policies add to that complexity by creating and defining certain employee rights and benefits as dependent on marital status.

The general legal rule should now be that same-sex marriages are entitled to the same workplace protections, advantages and obligations as traditional marriages. Nothing is that easy in law. Some questions are unclear and will take time to sort out.

Employer Policies. Employee handbooks and policies describe the rules of a workplace. When a handbook promises something that is not statutorily required (such as paid sick leave to help a sick spouse), will a same-sex spouse employee become entitled to the benefit? It seems so if the policy used spouse as the coverage test. Maybe not if the employer defined spouse differently.

What about maternity leave policies that are designed for post-delivery physical recovery and often not available to the father?

While it may no longer make sense to have such distinctions, the point is these voluntary promises made to employees should be reviewed for consistency with the law and employer intent.

Federal Employment Laws. It is clear that federal workplace laws using the words spouse and marriage will apply equally to all spouses, regardless of orientation. The Family and Medical Leave Act and COBRA insurance continuation rights come to mind first. What about laws that regulate employer decision-making, but do not specifically involve marriage?

For example, federal civil rights law speaks to race and sex discrimination at work, but does not explicitly prohibit same-sex marriage discrimination. Will the law now cover claims of mistreatment of a same-sex spouse at work? It seems this will depend on whether a court views the claim as one of sex discrimination (covered) or sexual orientation bias (not covered).

Benefits Issues. Same-sex spouses married in other states who previously received health benefits through their partner’s employer may have paid income tax on that benefit. Going forward, the IRS will recognize the pre-tax benefit afforded to traditional marriage couples in North Carolina. Can a refund be sought for prior years?

A covered employer is not required to provide or pay for spousal health benefits under the federal Affordable Care Act, but if provided, they must now be offered on the same terms to all married couples.

What about insurance contracts, retirement benefits and other promises made or purchased years ago using the word spouse with the actuarial assumption only spouses in a traditional marriage were covered? Was there a definition of spouse in the document? That could determine today’s rights under the agreement.

Regardless of where you stand, it seems U.S. District Judge Max Cogburn Jr. decided the biggest issue on Oct. 10. Employers and employees should stay alert to the second level issues and perhaps more judicial orders.

Bruce Clarke, J.D., is CEO of CAI, helping more than 1,000 North Carolina employers maximize employee engagement and minimize employer liability. For more information, visit