The Demise of DOMA Leads to FMLA Changes


The United States Supreme Court (SCOTUS) struck down Section 3 of the Defense of Marriage Act last year, which was a federal law that is partly responsible for the institutionalized discrimination against same sex couples and LGBTQ individuals.  The landmark case of United States vs. Windsor resulted in a ruling by the highest court in the United States that it was unconstitutional for the federal government to limit the definition of marriage in ways that would indicate that it can only apply to a man and woman couple.

The consequences of the decision are now being dealt with across the board and the U. S. Department of Labor has decided to address the issue that arises as part of the Family Medical Leave Act.

he DOL recently issued a “Notice of Proposed Rulemaking” that would redefine the definition of spouse for the purposes of the Act.  The proposed rule change would allow for the inclusion of most same sex couples in relation to the term “spouse.”

The FMLA had originally defined marriage as between one man, and one woman, just as did DOMA.  However, with the ruling by the Supreme Court that definition became outdated overnight.

In order to complicate the issue, the traditional test of whether a couple (male/female) was married or not had to do with the definition of marriage in the couple’s state of residence.  In other words, if a man and woman were married in one state where their marriage was recognized, and then moved to another state, they would still be considered married as long as their new state allowed the same type of marriage.

This is never an issue with opposite sex couples because federal law and every state law already recognize opposite sex couple marriages.

Obviously this does not apply to same sex couples.  If two men are married in California, where their marriage is recognized and then they move to Arizona, where it is not, suddenly they are not married.  This would cause quite a few headaches for companies that have operations across multiple states.

The reason for this situation is that Section 2 of the Defense of Marriage Act was not overturned by the Supreme Court.  That section states that one state is not required to recognize the same sex marriages performed in other states, even if they were valid marriages in the originating state.

SCOTUS did not address that provision because it did not come into play, given the facts of the Windsor case.  The couple in that case had been married in a state that recognized same sex marriages and then they moved to another state that similarly recognized them.  The Court only addressed the issue of whether federal law could discriminate against a couple where they had been validly married under the laws of a state.  It ruled that it could not, but did not go farther.

In order to address the issue the Department of Labor is proposing to change (among other things) the traditional test from state of residence, to state of celebration.

Under the new scheme if two women are married in California and they move to Arizona, they would still be married and the provisions of the FMLA would apply, as long as they met the other criteria for being covered (i.e. length of service, number of hours, 75 employees, etc.)

The Department of Labor insists that these changes are necessary in order to achieve uniformity of treatment under the Act in all states, especially for companies that operate in more than one state where local rules may conflict.  The Department was quick to point out that the U. S. Department of Defense already follows the state of celebration rule for purposes of defining marriage.


Aside from changing the test for valid marriages from state of residence to state of celebration, the Notice provides for a few other changes.

The new rules would expressly include same sex couples under the definition of ‘husband and wife.’  This is an odd provision in its wording seeming to indicate that same sex couples may have to designate one partner as a husband and one as a wife.  I can see the arguments starting already…

The new rules would also allow for couples that are married outside of the United States to be viewed as married in the U. S. as long as A) the place they were married recognizes them as validly married, and B) at least one U. S. state recognizes them as validly married.

For a humorous law-school like look at the changes in the FMLA law take a look at this article by Robin Shea..and yes, law school is just like this.

If you have questions about the Family Medical Leave Act or any other employment law issue, or if you have been the victim of unlawful employment practices by your employer, contact Stephen Danzq & Associates at (877) 789-9707 or use the Contact Form on our website to schedule a free consultation today.  Stephen is one of the most widely respected labor lawyers in California, and has dedicated himself to protecting the rights of employees across the state and around the world for over three decades.  He will meet with you, along with one of his senior associates, at a location that is convenient to your work, school or home.  He will discuss the facts of your case, outlining any possible causes of action and guiding you through the complicated world of employment law cases.  He is one of the premiere employment law attorneys in the state.

We look forward to defending your rights.