Delaware’s Law on Same-Sex Unions Takes Effect January 1

By Adria B. Martinelli and Lauren E. Moak

The new law allowing same-sex civil unions in Delaware and recognizing civil unions performed in other states goes into effect January 1, 2012 after being passed last spring. The law also changes all sections of the Delaware Code that mention marriage by requiring that the word “marriage” be read to mean “marriage or civil union.”

Of course, the state law can’t alter the fact that federal law doesn’t recognize civil unions. But the new state law still affects employers.

The most significant impact is likely to be on employment benefits. As of January 1, 2012, employers will be required to provide partners in a civil union with the same benefits provided to partners in a marriage. It’s important to remember that the state law generally won’t affect federal tax treatment of employee income or benefits or employee benefits governed by federal law.

The new law also is limited to employers that are covered by the Delaware Discrimination in Employment Act. Consequently, if you (1) have fewer than four employees or (2) are a religious corporation, the law won’t directly affect your business.

The new law means employers must keep equality of benefits in mind. Many employers previously offered employment benefits to unmarried same-sex partners but not to unmarried heterosexual partners. Now that same-sex couples will soon have access to civil unions that are substantively identical to marriage, you may be open to claims of reverse discrimination if you offer benefits to same-sex partners who haven’t entered into a civil union but don’t offer the same benefits to unmarried heterosexual partners.

For more information, see the May 2011 issue of Delaware Employment Law Letter.