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Same-Sex Unions in N.J.: Responsibilities and Restrictions of the New Law

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in Employee Benefits Program,Employment Law,FMLA Guidelines,Human Resources

by Sandro Polledri

Same sex unions are now a reality in New Jersey, and employers will have to change the way they deal with employees as a result.

It’s too early to tell exactly what steps employers will need to take, but it’s important to understand what led to the decision and legislation.

The Lewis v. Harris case arose when seven same-sex couples brought a lawsuit charging the state’s marriage laws violated the New Jersey Constitution because the laws required civil marriages to be a union between a man and a woman.

In its analysis, the N.J. Supreme Court recognized that the state legislature had already passed laws prohibiting discrimination on the basis of sexual orientation, and judicial decisions have likewise expanded gay and lesbian rights.

Earlier laws granted some rights. For example, in 1992 the state legislature amended the New Jersey Law Against Discrimination (LAD) to prohibit discrimination on the basis of “affectional or sexual orientation.” And in 2004, the legislature again amended the LAD to bar discrimination due to “domestic partnership status.”

Also in 2004, New Jersey passed the Domestic Partnership Act, which gave some specific rights and benefits to same-sex couples, such as making medical decisions for their partners and rights to certain health insurance, pension benefits, inheritance rights and tax benefits. (That law, however, did not require private-sector employers to provide health insurance benefits to employees’ domestic partners.)

Limits of earlier laws. Despite those laws and court rulings, same-sex couples still did not enjoy all the benefits and rights of married heterosexuals. Until this new law, for example:

  • Employers were not required to provide health insurance benefits to an employee’s same-sex partner.
  • Employees did not have the right to take family leave to care for a same-sex partner who has a serious medical condition.
  • Back wages did not have to be paid to the same-sex partner of a deceased employee.
  • The same-sex partner of an employee was not entitled to survivor’s benefits under the workers’ compensation law.

Impact of new civil-union law. On Oct. 25, the N.J. Supreme Court ruled this disparity of rights violated the equal protection guarantee of the New Jersey Constitution because committed same-sex couples did not receive the same privileges and benefits as those enjoyed by married heterosexual couples.

To correct this imbalance, the court held that “every statutory right and benefit conferred to heterosexual couples through civil marriage must be made available to committed same-sex couples.”

Now the legislature has addressed the disparity by establishing a “parallel statutory structure” that grants same-sex couples the same “rights and benefits,” as well as the same “burdens and obligations,” of civil marriage, without actually designating it as a marriage.

Lewis is a far-reaching decision, as is the legislation. However, it also appears that the Lewis case will be limited to rights granted under New Jersey state law, as opposed to federal law. The Lewis decision will no doubt create administrative challenges and novel legal questions as employers, employees and the courts interpret the new law and apply it to everyday workplace situations.


Sandro Polledri, Esq., is a certified civil trial attorney and partner at Genova, Burns & Vernoia, (www.gbvlaw.com), a New Jersey-based law firm with offices in Livingston, Red Bank, Camden, New York and Philadelphia. He can be contacted at (973) 533-0777 or spolledri@gbvlaw.com.  

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