What Impact Would Gay Marriage in Wisconsin Have on Employment Law?

Recently, multiple efforts to overturn Wisconsin’s ban on gay marriage have made the news. Last week, Democratic legislators Rep. JoCasta Zamarripa and Sen. Tim Carpenter co-sponsored the repeal of Wisconsin’s state constitutional amendment banning gay marriage. Just two weeks earlier, the ACLU backed litigation asking a federal court to overturn the state constitutional amendment. This lawsuit followed the U.S Supreme Court decision issued last year in United States v. Windsor, which struck down the federal Defense of Marriage Act that previously denied federal benefits to gay marriages.

Without commenting on the likelihood of success for either of these endeavors, there are a couple of important effects the success of either would have on current employment law.

First, if gay marriage was recognized in Wisconsin, there would be more employees eligible for Family and Medical Leave Act benefits. Recall that the FMLA grants up to 12 weeks of unpaid leave to an employee to take care of his or her own serious health condition or the serious health condition of a family member, including a spouse. Currently, the FMLA regulations define spouse as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.”

Under the law as it stands, an employee living in Minnesota (a state recognizing same-sex marriage) but working in Wisconsin (a state that does not recognize same-sex marriage) is entitled to FMLA leave for the serious health condition of his or her spouse. However, a Minnesota employer would not have to recognize any right to FMLA leave for the serious health condition of a same-sex spouse when they are Wisconsin residents. Wisconsin employees who are part of a gay marriage and living in Wisconsin are also ineligible for FMLA leave for their spouse’s serious health condition because the state does not recognize those marriages. Those employees may still qualify for Wisconsin FMLA benefits as a domestic partnership, but that is the subject of an upcoming Wisconsin Supreme Court case.

A repeal or overturn of the 2006 Wisconsin gay marriage amendment would seemingly clarify much of the compliance confusion so that all marriages would be subject to FMLA rights for the care of a spouse’s serious health condition. With the numerous complexities that already exist under the FMLA in other respects, this might be a welcome change for many employers.

Second, recognizing gay marriage in Wisconsin would also affect individual rights under the Wisconsin Fair Employment Act. One of the classes under the WFEA that is not currently protected under federal law is marital status. In other words, the WFEA prohibits an employer from discriminating in employment on the basis of an individual’s marital status. In a 1992 case, Phillips v. Wisconsin Personnel Commission, the Wisconsin Court of Appeals found a same-sex couple was not protected under the WFEA for the denial of family coverage insurance benefits to her “spouse equivalent” partner.

Legally recognizing gay marriage in Wisconsin would mean that homosexual individuals in such a same-sex relationship would be protected from discrimination on the basis of their marital status under the WFEA. This protection would supplement the prohibition against sexual orientation discrimination that is already in place in our state through the WFEA.

As I’ve noted above, we are likely a ways away from legal recognition of gay marriage in Wisconsin. But if it comes to pass, there will be important effects on employment matters.