By: Sean Hughes
ExxonMobil will extend health insurance coverage to the spouses of employees in legal same-sex marriages starting October 1. The decision was made to ensure compliance with the federal definitions of “marriage” and “spouse;” not a change of heart for the company. Earlier this year, Exxon received sharp criticism because so many of its rival companies have adopted policies that earned high scores from the Human Rights Campaign. The Human Rights Campaign awards companies scores on a scale of 100 – Exxon was the first firm “to get a score below zero.” Exxon received a score of negative 25.
Exxon’s decision also comes in the wake of guidance issued by the Department of Labor last week based on United States v. Windsor. The news release states that the terms “spouse” and “marriage” in Title I of ERISA should be read to include “same-sex couples legally married in any state or foreign jurisdiction that recognizes such marriages, regardless of where they currently live.” The Department plans to issue additional guidance in the coming months as well.
Exxon currently faces a legal complaint in Illinois that claims the company discriminates based on sexual orientation. Exxon denies that it is involved in any type of discrimination and referred to the complaint as “baseless and without merit.” Exxon stands by its zero-tolerance policy on discrimination, and referenced its anti-discrimination polices against gay employees in countries that mandate it by law. Critics say that Exxon’s policies abroad do not change the fact that many companies offered health benefits to their employee’s same-sex partners in spite of the Defense of Marriage Act. “62 percent of the Fortune 500 companies offer domestic partner benefits,” according to the Human Rights Campaign; Exxon was never one of those companies until now.
Whether Exxon actively discriminates against same-sex employees is a matter for the Illinois Court to decide, but, it is clear that its policy related to employee benefits goes as far as what the law says. Compared to the whole it certainly seems Exxon leaves much to be desired, but it should be noted that it was only this summer that Walmart announced it will offer benefits to same-sex and domestic partners. While critics do lambast Exxon for dragging its feet to change its policies, it was following the law and promptly updated its policies when the law changed. Does Exxon have an obligation to go beyond what the law requires of it as it relates to employee benefits? Rather than attack Exxon for its compliance, perhaps the anger should be directed at the way the law is currently written.
 Blake Ellis, ExxonMobil to extend benefits to same-sex couples, CNN Money, Sept. 27, 2013, http://money.cnn.com/2013/09/27/news/companies/exxonmobil-same-sex-benefits/.
 David Crary, Exxon Mobil Accused of Anti-Gay Bias by Activist Group, Huffington Post Business, May 22, 2013, http://www.huffingtonpost.com/2013/05/22/exxon-mobil-anti-gay-freedom-work_n_3320175.html.
 Tara Siegel Bernard, Exxon to Extend Health Care to Married Same-Sex Couples, N.Y. Times, Sept. 27, 2013, http://www.nytimes.com/2013/09/28/business/exxon-to-extend-health-care-to-married-same-sex-couples.html.
 News Release, Emp. Benefits Sec. Admin., New guidance issued by US Labor Department on same-sex marriage and employee benefit plans (Sept. 18, 2013).
 Bernard, supra note 5.
 Ellis, supra note 1.