Same Sex Marriage Rights and Same Sex Domestic Partner Benefits

According to the Bureau of Labor Statistics National Compensation Survey, 35 percent of workers had access to same sex domestic partner (SSDP) health benefits in March, 2014. Although SSDP benefits are not required by law (you can read about the history of SSDP benefits here), firms have found that these benefits reduce turnover and attract higher quality and more productive workers. In fact, a larger share of firms offer SSDP benefits than those that offer opposite sex domestic partner (OSDP) benefits. With the Supreme Court’s ruling in favor of same sex marriage equality, there may be some questions regarding whether firms are likely to [or should] change their policies regarding SSDP benefits.

Here are some elements to consider with respect to SSDP benefits and whether is still makes sense to include these benefit in the cadre of offerings by [your] firm.

Do you operate in a State with Legislation Protecting Sexual Orientation

There are 22 states which offer employment protection based on Sexual Orientation. If you operate in one of these states, a change in policy away from SSDP benefits is less likely to have negative ancillary effects on your employees. A same-sex married couple living in Illinois would have protection against employer discrimination as well as protection against discrimination in the housing market. In Arkansas, however, a same-sex married couple is not protected in either of these markets. If a firm in Arkansas removes SSDP benefits, the couple might chose to marry rather than forego health benefits. But, in this situation, the marriage (although legal) might make the couple more susceptible to discrimination in other areas (such as housing, adoption or employment for the spouse).

Consistency Across Policies

A larger share of firms offer SSDP benefits than OSDP benefits. If your firm does not currently offer OSDP benefits but chose SSDP benefits to equalize access to benefits prior to marriage equality, it may be time to examine your offerings. Companies such as IBM and Delta have phased out SSDP, giving dead-lines to employees to either marry or lose their SSDP benefits. And, some states, such as Maryland, have also given employees ‘marriage-ultimatums.’ These “I-Do-or-Don’t’ policies may be harsh but are likely driven by a need for consistency across company policies.

What is Your Goal?

If your company has been offering SSDP benefits, the organization has already made a deliberate choice to be a competitive employer. Is your company vying for Fortune’s ‘Best Companies to Work For’, are you facing stiff competition for high quality workers or are you trying to minimize costs in a tight economy? The goals of the organization will drive this decision.

The policies that [your] firm engages with respect to benefits should be evaluated under a three-pronged approach: liability, consistency and company-wide strategic objectives. The decision to keep or remove SSDP benefits should be made only after evaluating the impact that this change will have on your employees [their productivity, motivation and views of the organization] and on the firm. The Supreme Court’s ruling has provided a path under which same-sex committed couples can achieve benefits under most company programs.

For further information, contact us at [email protected].

This Blog was authored by Thomas More Smith, PhD, CHRS Labor Specialist – November 18, 2015