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California Chamber of Commerce Labor Law Corner:: Employers Must Treat Same-Sex Couples Equally in Workplace

I heard that the California Supreme Court says it is OK for people of the same sex to get married. I have an employee who has just informed me that she intends to marry her female partner. Is there anything I should do that would be different from how I would handle heterosexual couples getting married?

The California Supreme Court recently ruled that same-sex partnerships should be afforded the same rights and benefits as opposite-sex couples who marry.

The court found that California laws which restrict the right to marry are unconstitutional and that offering a “domestic partnership” option for same-sex couples will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.

Equal Treatment

That being said, what impact will this have on you as an employer? You must treat employees who marry equally regardless of whether they choose to marry a heterosexual or homosexual partner.

The California Fair Employment and Housing Act specifies that it is an unlawful employment practice to refuse to hire, employ, limit an employee’s access to training or to discriminate against an employee relating to compensation or other terms, conditions or privileges of employment because of his or her sexual orientation.

Therefore, you must follow the same process, provide the same paperwork, notices, etc., to a homosexual employee who plans to, or gets married as you would to a heterosexual employee.

If you have not yet been presented with this issue, you can begin by reviewing your employee handbook, in particular your discrimination and harassment policies, to ensure that all employees are equally protected.

Meet with supervisors and managers to remind them of the company policy against harassment and remind them that “water cooler talk” in response to this decision may rise to the level of discrimination or harassment.

Verify that all employees are up to date on their sexual harassment training and if you have more than 50 employees, be sure your supervisors have taken their AB 1825 training.

Benefits Eligibility

You may also wish to talk to your accountant or financial advisor to determine the potential impact on expenses, particularly relating to medical benefits, so you can adjust your budgets if necessary. Although individuals in registered domestic partnerships have the same rights as married people relating to health benefits, the opportunity to marry may increase the number of people in your company whose spouses are legally eligible for health benefits.

If you pay for employees and their spouses, you might have an increase in cost. Again, you must offer the same benefits to all employees and their spouses equally, regardless of their sexual orientation.

Be sure your hiring paperwork includes a DE 4 — the state tax withholding form. Same-sex partners may marry, but only state law will recognize the couple as married; federal law will not.

All new hires should be given a DE 4 as well as a W-4.

The Labor Law Helpline is a service to CalChamber call 800.348.2262 or submit your question to hrcalifornia.com.

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