III. Methods for acquiring benefits.

• Pages: #2005

In the modern work environment, lesbian and gay employees have used three different avenues to acquire benefits:

(A) Legislation and political efforts

(B) Collective bargaining or other employee initiative

(C) Litigation

Each of these avenues has been used with varying degrees of success, with some of the biggest gains in local city or town ordinances. The method employed by individuals will vary with their situations and may overlap. Additionally, an individual may find him or herself advocating for domestic partnership benefits in more than one arena. For example, while advocating directly for domestic partnership benefits with his or her own employer, an individual may (and likely should) advocate for legislative initiatives that would mandate that all employers provide domestic partnership benefits. While advocating directly to an employer would be more likely to result in a timely initiative, legislation would make permanent employee gains in the work place and prevent employers from later retracting or altering the benefits provided.

Determining what tactic or combination of tactics to use will vary based on an individual's or group's goals, the employer's and fellow employees' openness or resistance, the type of employer, i.e. public versus private, and the public's (local and state) feelings on domestic partnership benefits and general attitudes towards gay men and lesbians.

1. Legislative and Political Efforts

   Efforts to achieve benefit coverage through legislative initiative or political efforts can take place at three levels: local, state, and federal. Legislation can work within two spheres: laws that prevent discrimination against non-married partners or gay men and lesbians, and laws that require employers to provide benefits to domestic partners. These two goals are often linked to both the desire for and the opposition to same-sex marriage. The most frequent and successful legislation guaranteeing domestic partnership benefits are state and local laws requiring public agencies to provide the domestic partners of employees with benefits. Currently, over forty state and local governments offer domestic partnership benefits. (4)

   Unfortunately, legislation can be a double-edged sword since it is also a tool utilized by those who oppose providing domestic partnership benefits or recognizing domestic partnership relationships. The following is a brief sampling of legislative and political efforts in action. Note that because the legislative process is always ongoing, these ordinances and statutes are constantly being revised and updated.

   1. Local

      California is at the forefront of changing local ordinances. As of March 2000, 12 cities and four counties provide healthcare benefits to domestic partners. (5) The oldest ordinance requiring the provision of benefits to domestic partners is the City of Berkeley ordinance passed in December 1984. (6) While the first of its kind, this ordinance is limited to providing healthcare and dental benefits to municipal employees who have filed an Affidavit of Domestic Partnership under Berkeley's Domestic Partnership Policy. (7) Furthermore, the policy requires that both partners be over the age of eighteen, "that they have lived together at least six months and 'share the common necessities of life'," and that as each other's sole domestic partners, each is responsible for the other's common welfare. (8) Berkeley also requires that in the event of a partnership dissolution, a statement of termination be filed. (9) Four years after the passage of the ordinance, the city found only a minimal increase in the costs of their insurance premiums. (10)

      In 1985, West Hollywood, CA, adopted an ordinance which, as a starting point to providing benefits, allowed unmarried couples to register their relationships. This created jail and hospital visitation rights. (11) In February 1989, the city began to provide basic medical coverage at premiums equivalent to those for spouses to the partners of municipal employees who had registered. (12)

      On June 1, 1997, the City of San Francisco took the next step with its Domestic Partnerships Law which required private employers with whom the city contracted to treat domestic partners as spouses for all employee benefit plan purposes. (13) Like Berkeley's ordinance, San Francisco requires that both partners are over the age of eighteen, live together, be financially dependent on each other, and register with a domestic partnership registry. (14)

      Those in opposition to domestic partnership recognition and benefits have challenged the San Francisco statute in several lawsuits. (15) Some aspects of the ordinance have been struck down in court under the theory that the ordinance is preempted by the Federal Employee Retirement Income Security Act (ERISA), which governs benefit and pension plans. That case is currently under appeal. (16) Other similar laws are likely to be challenged under ERISA. Given recent Supreme Court decisions, it is unclear how this issue will ultimately be decided. The Court has been "unwilling to hold that ERISA preempts state and local laws that affect ERISA plans so long as the laws are both consistent with ERISA's substantive provisions and removed from ERISA's core concerns." (17) Municipal ordinances such as Berkely's and San Francisco's have resulted in private employers looking into the feasibility of providing domestic partnership benefits. Other cities that have passed ordinances recognizing domestic partnerships include: Laguna Beach, California; Los Angeles, California; Santa Cruz, California; Takoma Park, Maryland; Cambridge, Massachusetts; Ann Arbor, Michigan; Minneapolis, Minnesota; Madison, Wisconsin; Seattle, Washington; and Washington, D.C. (18)

   2. State

      On July 8, 1997, Hawaii became the first state to pass legislation requiring employers to provide domestic partnership benefits when the legislature adopted the Reciprocal Beneficiaries Act. (19) However, while recognizing non-married couples, this Act was also an attempt to prevent recognition of same-sex marriages. (20) The definition of "reciprocal beneficiaries" includes a relationship between two people of the same sex both at least eighteen years of age, neither of whom is already married or in a reciprocal beneficiaries relationship, and who are not otherwise legally barred from marriage to each other. (21) The partners must also sign a declaration of the reciprocal beneficiary relationship. (22) There is no requirement that the reciprocal beneficiaries share the same residence. (23) Due to the broad nature of the statute, it is possible for relatives or friends to be declared reciprocal beneficiaries in addition to gay and lesbian couples. (24) This was of concern to many employers who felt the law too broad in scope. (25) Several employers challenged the statute, and in July of 1997, a Hawaii Federal District Court ruled that private employers did not have to extend healthcare coverage to reciprocal beneficiaries because this violated ERISA. However, the statute also provided healthcare benefits to state employees, hospital visitation rights, property and inheritance rights, the right to sue for wrongful death, and the right to protection from domestic violence. (26)

      Vermont is taking a more inclusive approach to domestic partnership benefits. If the "Civil Unions Bill" that is currently being debated by the Vermont Legislature is passed, it will effectively confer on registered civil unions, all the same benefits as marriage. (27) Many other states are looking to see how these legislative initiatives are constructed and implemented, as well as their effects in the workplace. The fact that these laws have at least partially withstood legal challenges is promising. Additionally, "a state could, through legislation or otherwise (as by a decision of the insurance commissioner) change the state's insurance code to prohibit the writing of insurance policies that discriminate on the basis of sexual orientation, and to define failure to provide same-sex partners the same benefits as spouses as prohibited discrimination. This would avoid ERISA preemption under the insurance saving's clause." (28) Additionally, a change in the definition of "spouse" to include same-sex partners would result in benefits being provided to employee's partners.

   3. Federal

      On the federal level, President Clinton signed Executive Orders prohibiting employment discrimination on the basis of sexual orientation in the federal civilian workforce. Additionally, the past three Congresses have debated, but not yet passed, the Employment Non-Discrimination Act. This Act would extend federal employment discrimination protection to include sexual orientation. This would prevent employers from using an individual's sexual orientation as a basis for employment decisions, such as hiring, firing, compensation, or promotion. Support for this Act has been increasing even among moderate Republicans. Both President Clinton and Vice President Gore support the Act.

      Opposition at the federal level has come in the form of The Federal Defense of Marriage Act or DOMA, which was passed in 1996. DOMA has two components: 1) States are not required to give full faith and credit to judgments and acts of other states in regard to same-sex marriages, and 2) marriage is defined as a union only between a man and a woman. (29) Another form of federal opposition is the Hefly and Riggs Amendments in the 105th Congress. The Hefly Amendment would have prohibited the expenditure of funds to implement, administer, or enforce President Clinton's executive orders on sexual orientation discrimination. The Riggs Amendment would have prevented aid from the Department of Veteran's Administration and the Department of Housing and Urban Development from being disbursed to cities that passed laws requiring health benefits to unmarried domestic partners of employees. These Amendments were passed by the House on...