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The Immediate Impact of the DOMA Ruling for Delaware Employers

Posted by Lauren Moak RussellOn July 8, 2013In: Benefits, Cases of Note, Discrimination, Sexual Orientation, U.S. Supreme Court Decisions

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Delaware began issuing marriage licenses to gay couples on July 1, 2013, less than a week after the U.S. Supreme Court's decision striking down the Defense of Marriage Act (DOMA). Delaware will no longer perform civil unions pursuant to the Civil Union Equality Act, which was passed into law in 2010. Couples who entered into a civil union prior to July 1 may convert their civil union into a legally recognized marriage or wait until July 1, 2014, when all remaining civil unions will be automatically converted.

The Court's DOMA ruling is expected to affect an estimated 1,138 federal benefits, rights, and privileges. For Delaware employers, the impact is potentially significant. Delaware employers must now extend all federal benefits to gay married couples that were previously made available to straight married couples. The impact also is immediate. Unlike with new legislation, there will be no delay between the Court's ruling and an employer's obligation to extend benefits.

Although the Supreme Court's decision will impact who is eligible for benefits, the procedures remain unchanged. For example, the process for requesting and reviewing FMLA leave, COBRA coverage, and other federally mandated benefits of employment will not change.

One step employers should consider is possible adjustments to tax and health-insurance forms. Spouses that could not previously "claim" one another on federal tax forms may need to submit new IRS Form W-4s. In addition, if your company offers ERISA-covered health-insurance plans and did not previously extend benefits to gay couples, those plans will now be open to the enrollment of gay spouses. This means that, if your company offers health insurance coverage to the straight spouses of its employees, the same benefits must now be extended to gay spouses. In addition, gay spouses will now be the primary beneficiary on all 401(k) plans.

In the end, Delaware employers are likely in a better position to adapt to the Supreme Court's decision, since benefits have been extended under State law since January 1, 2012. Employers should keep in mind that the same benefits must be extended and the same processes will still apply to same-sex married couples. In the event that you think it may be necessary to deviate from this rule of thumb for some unusual circumstances, consider consulting legal counsel before doing so.

Same-Sex Civil Unions Recognized in Delaware

Posted by Adria B. MartinelliOn April 15, 2011In: Benefits, Delaware Specific, Discrimination, Legislative Update, Sexual Orientation

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The Delaware House of Representatives voted yesterday in favor of Senate Bill 30, a bill that would create same-sex civil unions in Delaware, and recognize civil unions performed in other states. The bill also changes all sections of the Delaware Code where marriage is mentioned, by requiring that the word “marriage” be read to mean “marriage or civil union.”  Delaware Capitol Hill color

Senate Bill 30 was approved by the Delaware Senate on April 7, and Governor Markell has already declared that he will sign the bill into law “as soon as a suitable time and place are arranged.” The law will take effect on January 1, 2012.

The new law raises several questions for employers.  For example, the law cannot, and does not, alter federal non-recognition of civil unions. So how will the new law impact employers?

Right to Employment Benefits

As we have previously indicated, the most significant impact of Senate Bill 30 is likely to be on employment benefits. When the law takes effect, employers will be required to provide partners in a civil union with the same benefits that they provide to partners in a marriage. The Act would not cover those currently not protected by the Delaware Discrimination in Employment Act (DDEA): (a) employers with less than 4 employees; or (b) religious corporations with respect to discrimination based on sexual orientation

Equality of Benefits

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 upon same sex civil union partners as they do upon 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.

Discrimination Protection

As we have previously reported, 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.

This post was authored by Adria B. Martinelli and Lauren Moak.  Adria will be speaking about the implications of Delaware's Civil Union and Equality Act of 2011 at our upcoming Annual Employment Law Seminar on May 11, 2011. 

Third Circuit Says That Boys Can Cry . . . And File Suit: Gender Stereotyping & Title VII

Posted by Molly DiBiancaOn September 4, 2009In: Cases of Note, Gender (Title VII), Harassment, Sexual Orientation

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In July, Delaware Governor Jack Markell signed into law an amendment to Delaware’s employment-discrimination statute. The amendment prohibits discrimination based on sexual orientation. Not surprisingly, many employers are concerned about the potential for increased litigation in light of the new law. Some employers may be surprised to learn that current federal law has been used to achieve a similar level of protection. A recent decision from the federal appeals court demonstrates the extent that such protection is provided under Title VII of the Civil Rights Act (Title VII). square peg round hole

The U.S. Court of Appeals for the Third Circuit, which has jurisdiction over the federal courts of Delaware, Pennsylvania, New Jersey, and the Virgin Islands, ruled in late August that a homosexual employee could proceed with his claim that he was harassed and fired because of his “effeminate behaviors.” The unanimous decision of a three-judge panel in Prowel v. Wise Business Forms, Inc., has made headlines across the country as an extension of Title VII’s sex-based discrimination provisions. Brian D. Prowel brought the claim after he was terminated by his employer after 13 years with the company. He alleges that Wise told him that he was being terminated for lack of work as part of a workforce reduction. 

According to Prowel, his termination actually was a result of “gender stereotyping.” Unlawful gender stereotyping in the workplace occurs when an employer discriminates against an individual because the individual fails to conform to a certain perception about how the gender should look and act.

Prowel claims that his coworkers called him “Rosebud” and “Princess” because he was well dressed and well groomed and did not engage in rowdy and distasteful behavior like his male colleagues. Coworkers, Prowel claims, left items such as a pink, feathered tiara and anti-gay religious pamphlets on his desk. In other words, Prowel claims that he was harassed and eventually terminated because he didn’t act “manly enough.”

Although the Prowel Rule May Be New, A Much Older Rule Still Applies

Organizations with employees in Delaware, Pennsylvania, and New Jersey should be mindful of the court’s ruling in Prowel, not because it stands for an expansion of the anti-discrimination laws, but because it strongly supports a principle that is much older than Title VII: Do unto others as you would have them do unto you. If an individual is being harassed, he will likely be able to characterize the harassment as being based on some protected characteristic. If no harassment occurs in the first place, there will be no need to split hairs over the true reason that he harassment occurred. Thus, to avoid being faced with a claim of unlawful harassment, the best practice is to strictly prohibit any kind of taunting, mockery, or from occurring in your organization’s workplace.

Start Your Engines: NASCAR Faces Harassment Suit

Posted by Molly DiBiancaOn June 11, 2008In: Cases of Note, Gender (Title VII), Harassment, Sexual, Race (Title VII), Sexual Orientation

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NASCAR has been sued for race discrimination, gender discrimination, and sexual harassment.  The plaintiff, a black female former official, seeks $225 million in damages.

NASCAR Discrimination Suit

The plaintiff, Mauricia Grant, worked as a technical inspector in NASCAR's second-tier Nationwide Series until she was fired in October 2007. She'd been with the organization since 2005, when she alleges the harassment and discrimination began. 

Her complaint, filed in federal court in New York, lists 23 specific instances of alleged sexual harassment and 34 specific instances of alleged gender and racial discrimination.

Despite an increasingly female fan base, NASCAR has long been a "man's sport" with women's involvement traditionally limited. 

Grant claims that she was harassed based on her race and her gender, as well as subject to a sexually hostile work environment.  In support of her racial discrimination claim, she alleges that she was referred to as "Nappy Headed Mo" and "Queen Sheba" and was told that she worked on "colored people time. 

One official, Grant alleges, routinely made references to the KKK.  And, while riding with coworkers at Talladega Speedway, she was told to duck as they passed by race fans because, one said, "I don't want to start a riot when these fans see a black woman in my car."

As for the sexual harassment, she says that she was accused of being gay when she ignored advances of co-workers.  She also claims that those same co-workers exposed themselves to her and made graphic and lewd jokes.

Grant also alleges that she routinely complained about the conduct to multiple supervisors, who responded that she should just "deal with it," and dismissed the conduct as attributable to "former military guys" with a rough sense of humor.

Source:   ESPN: Ex-NASCAR worker alleges racial discrimination in lawsuit

University of Hawaii Sued for Sexual-Orientation Discrimination

Posted by Molly DiBiancaOn March 30, 2008In: Family Responsibilities (FRD), Sexual Orientation

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Earlier this month, USA Today reported that a University of Hawaii student had filed suit against the public university for housing dicrimination. He alleged that, although he and his partner had been granted permission previously to live in the university-subsidized family housing, that permission had been revoked because the state did not recognize same-sex marriage. The couple, therefore, did not meet the criteria necessary to qualify for family housing.

Laws that protect againt housing discrimination and employment discrimination are often passed in the same bill. But Hawaii is not one of the states that has set up its laws this way. Hawaii state law prohibits discrimination in employment decisions based on sexual orientation. It does not have a parallel law for housing discrimination, though.

As you may know, Delaware has neither. But it has not been for lack of trying. Senate Bill #141 has been proposed and passed in the State House of Representatives for several years in a row. It has been tabled each time and housed in the drawer of a legislator until it is proposed again the following year. The bill would amend the titles of the Delaware Code that deal with Employment Discrimination, Public Housing and Public Works, Equal Accommodations, and Insurance. In each of those areas, it is unlawful to use race, religion, national origin, gender, age, or other protected characteristics as the basis for granting or denying access to, for example, public housing or government contracts.

Currently, 17 states and the District of Columbia include sexual orientation in their list of protected classes for the purposes of employment discrimination. In Delaware and Pennsylvania, public employers may not consider sexual orientation but there is no equivalent law for private employers. And neither Delaware nor Pennsylvania is one of the 15 states (including D.C.) that prohibit sexual orientation in its housing laws. Both Maryland and New Jersey are included among the states that prohibit consideration of sexual orientation both in housing and employment.