Though none of the recent regulatory updates regarding health care benefits for legally married same-sex couples apply directly to couples in domestic partnerships, the rule changes could substantially affect employers’ decisions to cover such arrangements under their health benefits plans in the long term.

So far, very few employers have indicated plans to discontinue their benefit offerings for gay and lesbian domestic partnerships as a result of U.S. Supreme Court’s June 2013 ruling on the Defense of Marriage Act of 1996 or the subsequent regulatory changes for same-sex spouses.

More than 78% of employers polled in August 2013 by the International Foundation of Employee Benefit Plans were offering health care benefits to their employees’ same-sex domestic partnerships prior to the Supreme Court’s ruling.

Two months after the decision was issued, more than 82% of those employers said they intended to continue to offer benefits to same-sex domestic partners.

However, with same-sex spouses now able to access the same tax benefits and other protections available to married opposite-sex couples, some employers have recently signaled an interest in dropping coverage for domestic partners from their health care plans beginning in the 2015 plan year.

“To the extent that the relevant state law allows them to do it, I’ve spoken with a few employers that just for administrative reasons want to eliminate the domestic partnership coverage altogether, largely so they don’t have to continue dealing with some of the difficult tax issues,” said Jay Kirschbaum, St. Louis-based national human capital practice leader at Willis North America Inc. “It’s one less administrative and political hurdle for human resource managers to contend with.”

A key factor in many employers’ decisions about whether they will continue to offer benefits to same-sex domestic partners could be the extent to which they already cover — or are willing to cover — opposite-sex domestic partners.

Fifty-five percent of employers polled by the IFEBP were not covering opposite-sex domestic partners at the time of the Supreme Court’s ruling, but one in five of those employers said they were considering offering the coverage going forward.

Conversely, employers that were covering opposite-sex domestic partners last year were about half as likely to consider ending those benefits in 2014.

Similar to the risk borne by self-insured employers who offer spousal health care coverage to married opposite-sex couples but not married same-sex couples, experts say an employer that continues to exclude opposite-sex couples from the domestic partner coverage it offers to same-sex couples could potentially be sued for gender discrimination under federal law. A sexual orientation discrimination claim also might be possible, but only if the target of that lawsuit is a fully insured employer in one of the 21 states plus the District of Columbia that have passed such protections.

“A sexual orientation discrimination claim would seem like the obvious way to go, but that kind of discrimination isn’t actionable under federal law,” said Todd Solomon, a Chicago-based partner at McDermott Will & Emery L.L.P. “There’s enough background guidance from the (U.S. Equal Employment Opportunity Commission) to suggest that they’re going to view sexual orientation discrimination as a form of gender bias.”