The U.S. Supreme Court’s decision to strike down portions of the Defense of Marriage Act will impact employers in many ways, in particular in the context of employee benefits (which we will post about shortly). The Oregon Family Leave Act (“OFLA”) already permits eligible employees to take leave in connection with the serious health condition of a same-sex domestic partner. Many people are not aware, however, that OFLA specifically defines “domestic partner.” A “domestic partner” for OFLA purposes means an individual joined in a domestic partnership. A “domestic partnership” means “two individuals of the same sex who have received a Certificate of Registered Domestic Partnership from the State of Oregon…” OAR 839-009-0210.
Employers should be careful, however, not to ask for a copy of an employee’s Certificate of Registered Domestic Partnership when evaluating an employee’s request for OFLA leave to care for a domestic partner suffering from a serious health condition, unless they also ask for proof that marriage from opposite sex spouses. Otherwise, the employer could risk liability for discrimination on the basis of marital status or sexual orientation, which are prohibited under Oregon law.