In April 2011, just before the New York state legislature passed the Marriage Equality Act, a state appeals court ruled that an employer could lawfully offer health care to same-sex domestic partners and not to opposite-sex domestic partners. Does the new law change this ruling?

What happened. Board of Cooperative Educational Services (BOCES) extended dependent healthcare benefits to same-sex domestic partners of member employees. A female employee, “Sally,” attempted to obtain coverage for her long-time male domestic partner and was denied. Sally filed a complaint with the Westchester County Human Rights Commission, claiming that BOCES’s policy discriminated on the basis of sexual orientation and marital status, in violation of a local human rights law.

What the court said. The Commission originally sided with Sally, but was later reversed by the New York Appellate Division. On appeal, the court held that BOCES did not unlawfully discriminate against opposite-sex domestic partners by offering health care only to same-sex domestic partners. The court based its ruling on the fact that BOCES showed it had a legitimate, nondiscriminatory reason for offering healthcare benefits only to same-sex domestic partners because at that time, same-sex domestic partners could not lawfully marry in New York and get benefits. The court did point out however that the policy had an escape clause – it could be rescinded if same-sex marriage became legal in the state.

Now that the full rights and benefits of marriage have been extended to same-sex couples via the Marriage Equality Act, where does that leave employers with opposite-sex domestic partners? Should employers who offer same-sex partner benefits should continue to offer them to couples regardless of whether they decide to marry, or expand them to opposite-sex domestic partners, since marriage is now available to all? As evidenced in the Putnam case, policies offering benefits only to same-sex partners have been tested in state courts and upheld on the grounds that marriage was unavailable to same-sex couples. The Marriage Equality Act will no doubt lead to further challenges along the same lines. Putnam/N. Westchester Board of Coop. Educ. Servs. v. Westchester County Human Rights Comm., NY App. Div., (2011).

Point to remember: Under the Marriage Equality Act, employers must provide all benefits subject to New York law on an equal basis to all married couples, regardless of gender. This includes spousal and family coverage under group health insurance plans that are insured by policies issued in New York State.