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What Do DOMA Decisions Mean for Employment Law?

Posted Oct 23, 2012 10:06 AM CDT
By Stephanie Francis Ward

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As courts strike down laws that ban same-sex marriage, lawyers wonder if employers will change benefits to be more inclusive for lesbian and gay employees, reports Corporate Counsel.

The article cites the recent U.S. Court of Appeals for the Second Circuit opinion (PDF) that nixed the Defense of Marriage Act. It followed a May opinion (PDF) from the U.S. Court of Appeals for the First Circuit, which found DOMA unconstitutional.

Also, in April the Equal Employment Opportunity Commission issued an opinion that found discrimination against someone who is transgendered violates Title VII of the Civil Rights Act, in Mia Macy v. Eric Holder. A few months later, the U.S. Senate considered the Employment Non-Discrimination Act, which would have expanded Title VII to include sexual orientation and gender identity. It did not pass.

Kristin McGurn, a partner with Seyfarth Shaw’s Boston office who defends employment cases, told Corporate Counsel that many clients already offer benefits for same-sex spouses and domestic partners. Those that don’t, she said, are taking a “wait-and-see approach” with DOMA.

Carmelyn Malalis, a plaintiff employment lawyer, told Corporate Counsel that DOMA’s days are limited. Her New York firm has received more calls from gay, lesbian and transgendered clients since the state passed a marriage equality law last year.

“For the people who have not included [these changes] yet, you’re behind the curve,” she says. “Whether or not the law is dictating it right now, the people are dictating it."

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