This morning the Senate Judiciary Committee held a hearing on Senate bill S.598, The Respect for Marriage Act of 2011. The bill, introduced in the Senate in March of this year by Senator Dianne Feinstein, would repeal the discriminatory Defense of Marriage Act (DOMA), which bars the recognition of same-sex marriages. The bill would then amend federal law to state that “an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into.”
President Obama announced his support for the legislation on the White House blog yesterday.
Today’s hearing was an early step in the process of repealing DOMA. Also in March, Representative Jerrold Nadler introduced the same legislation in the House of Representatives (H.R. 1116).
Out & Equal submitted testimony to the Senate Committee on the Judiciary today:
Out & Equal Workplace Advocates is a strong supporter of S.598, The Respect for Marriage Act.
Out & Equal believes having the right to marry is a crucial quality of life and workplace issue for all lesbian, gay, bisexual and transgender employees. Every person deserves the right to the benefits and responsibilities of marriage, including the right to protect and provide for their loved ones. People of all sexual orientations create strong and lasting partnerships, which should be entitled to equal recognition.
For the past fifteen years, the Defense of Marriage Act (DOMA) has been a burden to American businesses in myriad and unforeseen ways. A strong majority of America’s most dynamic and profitable businesses support equality for lesbian, gay, bisexual and transgender people in their workforces and recognize the needs of their employees in same-sex partnerships. Fully 83% of the Fortune 100 companies offer domestic partner benefits to their employees.
These corporations know that a diverse, healthy workforce improves productivity and creativity within their ranks, helping them to excel in the modern world. The federal government’s denial of marriage rights to some of their employees impedes these companies’ ability to create the corporate climate which they feel is best suited to their strong and successful business model, and places a financial burden on those corporations.
- Interferes with a corporation’s climate of diversity, inclusion and creativity
- Impedes the recruitment and retention of talent, including a company’s ability to relocate their employees as needed
- Limits a corporation’s choices in the benefits they offer to their employees or requires them to provide expensive alternative solutions in order to treat their employees equally
- Imposes burdensome recordkeeping and management responsibilities on human resources departments
DOMA interferes with a corporation’s climate of diversity, inclusion and creativity
Studies show that employees are more productive and businesses more competitive when all employees are treated equally. Yet, even companies with a high commitment to full diversity and inclusion in the workplace are forced by DOMA to be inconsistent and inequitable in their practices. When employees’ identities—in this case, their sexual orientation—creates a difference in benefits and treatment, it makes it impossible for a company to achieve their full diversity goals, regardless of that company’s desires. It creates a situation in which employees’ compensation is based on who they are and what type of personal relationship they are in, rather than on the work they produce and the skills they bring to their job.
DOMA awards societal benefits to some employees that are denied to others, and thus runs counter to the climate of those businesses who believe that equality in the workplace benefits their products and innovation.
In addition, corporations are well aware that lesbian, gay, bisexual and transgender people are loyal consumers who pay attention to corporate stances and policies. Marriage equality is an important and visible issue for the LGBT community and one which LGBT consumers are following closely. Being a leader for marriage equality is crucial to building consumer loyalty, competitive edge and reputation within the community.
DOMA impedes the recruitment and retention of talent
Successful companies rely on their ability to recruit and retain the highest caliber employees. In today’s world, most profitable businesses seek the best qualified candidates, period. They know that if prejudice blinds them to the skills of a potential employee, they lose the talents of that person.
DOMA impedes this process in two ways—domestically and internationally. Within the United States, employees in same-sex relationships are likely to choose to work in states where their relationships are both recognized and protected. This means that corporations with headquarters in states that deny equal treatment to same-sex couples will suffer from a decreased ability to recruit and retain talent. A recent Massachusetts study showed that creative class individuals in same-sex relationships were 2.5 time more likely to move into the state because of marriage equality. The contributions of creative class professionals such as engineers, scientists, architects, designers, and educators are vital for business innovation.
In addition, businesses that operate in multiple states are inhibited in their ability to effectively manage human capital, since employees may avoid or even refuse promotion or transfer opportunities that require their families to relocate to states that lack critical protections and/or recognition of their marriages. Marriage equality, on the other hand, reduces turnover and provides greater stability for employees and their families.
Multinational corporations face the same challenge on a global scale. Employees who are legally married in their home countries are understandably very hesitant to travel to or work in the United States where their marriages are denied. This means that companies are limited in their ability to draw on their global talent to provide innovation, training and perspective to American workplaces. Global corporations value the ability to think globally and to place the best person—from whatever country—in the right job.
Finally, inequality places disproportionate stress on employees. Those in same-sex relationships must spend their own money to approximate the legal protections given by marriage; those with families must work even harder to protect their bonds with their children. The stress of a spouse’s critical illness or an adoption is higher without the legal protections afforded by marriage. These challenges and very legitimate fears of separation are understandably distracting and taxing to employees.
DOMA requires employers to provide expensive alternative solutions in order to treat their employees equally
By creating a second class of citizens who are denied equal rights under federal law, DOMA forces employers to bear the burden of creating equity in the workplace. Doing so interferes with the rights of corporations to set equal benefits for all their employees or requires them to come up with costly “work around” solutions. Simply put, DOMA makes it impossible for employers to offer every employee the same benefits and equitable compensation for the same job, even in states which recognize same-sex marriages.
Employers actually pay more in payroll taxes when they try to extend benefits to their employees who are in same-sex marriages or domestic partnerships because those benefits are viewed by the government as “imputed income.” Current taxation of domestic partner benefits costs American families and their employers $235,000,000 in additional income and payroll taxes every year. Yet many businesses bear this increased burden because they recognize the importance of equal treatment and are committed to it.
DOMA imposes burdensome recordkeeping and management responsibilities on human resources departments
Currently, corporations must function within a patchwork of state and local laws. The variety of state laws and regulations regarding the status of same-sex couples who are married or in domestic partnerships increases the complexity of corporate salary and benefit policies and can put multi-state and multinational companies in legal limbo regarding appropriate treatment of these couples.
For corporations that function in multiple jurisdictions, some of their employees may be considered married in some states, but not in others. If those employees are transferred to a different state, their legal marital status may change. This requires employers to keep track of a complex set of variables—whether their employees are in same-sex or opposite-sex marriages or partnerships, what state laws apply to each type of couple, and where their employees currently reside—costing them considerable time and money. In fact, it was business leaders in Vermont who urged the legislature to remove the initial two-tier system in place in that state.
Removing DOMA and other barriers to equal recognition of marriage rights will allow for the streamlining of recordkeeping and the distribution of benefits.
A diverse, vibrant and engaged workforce is critical to support the successes of American businesses and improving the American economy. In large and continually increasing numbers, American corporations are committing themselves to building equal and fair workplaces because they know that it is good for their employees and ultimately vital for their bottom line. Discriminatory laws, such as DOMA, interfere with this process by failing to treat every American as an equal. This means that the burdens of discrimination, including the costs, fall to businesses as well as to individuals in same-sex couples.
By granting marriage rights to some Americans, while denying the same rights to another class of Americans, DOMA enshrines discrimination in the law. Yet discrimination flies in the face of what is good for American businesses.
Therefore, we urge you to pass S.598, The Respect for Marriage Act.
 Human Rights Campaign, http://www.hrc.org/issues/workplace/benefits/domestic_partner_benefits.htm
For more about this topic, join Out & Equal on Thursday, July 28 for a Town Call on the Business Case for Marriage Equality. The call is free but you do need to register.