The Supreme Court's partial overturn of the Defense of Marriage Act could broaden employers' exposure to certain types of workplace discrimination and retaliation claims.

In its landmark June 26 decision, the nation's high court voted 5-4 to strike down Section 3 of the act, which prohibited federal recognition of state-sanctioned, same-sex marriages.

From an employment practices liability perspective, labor attorneys and compliance experts said the ruling is highly unlikely to affect employers' obligations under federal law to protect gays and lesbians from discrimination, since sexual orientation remains excluded from the list of protected employee classes under Title VII of the U.S. Civil Rights Act.

However, Title VII does protect workers from discriminatory conduct on the basis of gender, which can include sexual and malicious harassment; unfair hiring, compensation and termination practices; exclusion from company events and programs; and denial of corporate privileges.

Additionally, a 1989 ruling by the Supreme Court in a suit brought by the U.S. Equal Employment Opportunity Commission against New York-based PricewaterhouseCoopers L.L.P. said that gender-based discrimination can include executive comments and actions based on the perception that an employee does not adhere to traditional gender standards of masculinity and femininity.

“There is a line of case law that says employees are protected from discrimination based on not only gender itself, but also sex stereotyping,” said Laura Maechtlen, a San Francisco-based partner in Seyfarth Shaw L.L.P.'s labor and employment practice.

Federal recognition of valid same-sex marriages could lend considerable strength to future Title VII claims seeking to expand EEOC's formal stance on gender discrimination to include biased conduct against — or merely failing to prevent biased conduct against — legally married gay and lesbian employees based at least in the 13 states that currently recognize such unions, she said.

“Where the theory could come up is in a stereotyping situation where if a particular employee could prove that they were experiencing discrimination because they're not exhibiting the typical behaviors that are associated with their gender, namely who it is they've chosen to marry,” Ms. Maechtlen said.

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In 2011, EEOC issued a pair of decisions in favor of two former U.S. Postal Service workers — one in Connecticut and one in Louisiana — who claimed they had been consistently harassed on the basis of their romantic partners' gender. Experts said, though, that both cases were decided by EEOC staff and not the full panel of commissioners, meaning they do not set a precedent for future cases.

To date, federal agencies including the U.S. Departments of Justice and Labor, the Internal Revenue Service and EEOC have yet to issue new guidance on the application of private-sector employers' compliance obligations, under a range of laws governing employment practices and benefit plans as a result of the DOMA ruling.

“Obviously, it's too soon to say for sure what exactly employers need to do and when they need to do it,” said Steve Wojcik, vice president of public policy at the Washington-based National Business Group on Health.

A significant hurdle for regulators drafting that guidance, attorneys said, will be the remaining provisions under Section 2 of DOMA, which permit states to ignore each other's marriage and employment nondiscrimination laws.

To date, 13 states have legalized same-sex marriage, and 21 states have passed some form of non-discrimination law protecting gay and lesbian workers from sexual-orientation bias (see box).

For multistate employers, particularly those with high volumes of employees living and working in states with opposing nondiscrimination statutes, the uneven legal protections for gay and lesbian workers could amount to an administrative quagmire for human resource managers.

“The practical question for employers becomes one of whether they're really going to say they will have one set of employment and HR policies in certain states, and another set for the remaining states,” said Shanti Atkins, the San Francisco-based president and chief strategy officer at compliance consultant Navex Global Inc. “From both a practical and a corporate culture perspective, that's a no-win situation.”