Beginning January 1, 2012, Delaware will allow same-sex civil unions and also will recognize similar unions performed in other states. Yesterday, the Delaware House of Representatives approved Senate Bill 30, a bill that establishes and recognizes same-sex civil unions while also requiring that the word “marriage” where it appears in the Delaware Code be interpreted to mean “marriage or civil union.”
The bill now proceeds to Governor Jack Markell, who has said he will sign the bill into law. Delaware joins Connecticut, Hawaii, Illinois, New Jersey, New Hampshire, and Vermont in adopting same-sex civil unions, and Colorado is currently considering similar legislation. Seven other states allow domestic partnerships, rather than civil unions.
The Act would not cover those currently not protected by the Delaware Discrimination in Employment Act (DDEA) with respect to discrimination based on sexual orientation, specifically, religious corporations or employers with fewer than four employees. Further, the Act cannot, and does not, alter federal nonrecognition of civil unions. So how will the bill affect employers?
The most significant impact of Senate Bill 30 (SB30) is likely to be on employment benefits. When the bill becomes effective on January 1, employers will be required to provide partners in a civil union with the same benefits they provide to partners in a marriage.
Employers should also be aware that equality of benefits is a two-way street. Many employers previously offered employment benefits to unmarried same-sex partners but not to unmarried heterosexual partners. Now that same-sex couples have access to civil unions that are substantively identical to marriage, employers may be open to claims of reverse discrimination if they continue to offer benefits to same-sex partners who have not entered into a civil union but do not offer the same benefits to unmarried heterosexual partners.
Employers should also be careful to impose the same requirements for receipt of benefits on same-sex civil union partners as they do married partners. While it is perfectly acceptable to ask an employee to verify his or her marital status before extending benefits, the same requests should be made of both same-sex and heterosexual partners. If you do not require a copy of a marriage certificate to establish benefits, you should not require a copy of a civil union certificate.
Finally, note that the DDEA already protects Delaware employees from discrimination on the basis of sexual orientation. Keep in mind that homosexual individuals who may not have previously chosen to disclose that fact may, as a result of the new law, disclose that information so that their partner may enjoy benefits. Therefore, employers may possibly have knowledge of an employee’s protected class they might not otherwise have had — and should proceed cautiously with any adverse employment actions, particularly ones that may follow closely on the heels of such disclosure.
Learn more about avoiding discrimination claims in Mastering HR: Discrimination, part of the Mastering HR report series.