Domestic partnership benefits: Why not offer them to same-sex partners and unmarried opposite sex partners?

• Author: Zielinski, Debbie

1. INTRODUCTION

   Today, thirteen percent of all United States employers offer benefits to the domestic partners of their employees.(1) Larger companies, those with more than 5,000 employees, the figure is twenty-five percent.(2) Benefits offered to domestic partners often include both hard and soft benefits.(3) Hard benefits, which are commonly called "cost intensive benefits," may include medical, vision, and dental insurance along with pension or retirement benefits.(4) Other benefits are referred to as soft benefits and may include bereavement leave, legal services, employee discounts, health and fitness programs, relocation policies, and child care.(5)

   The number of companies offering such benefits has increased dramatically in this decade. Over the past three or four years, the number of public and private employers offering domestic partner benefits has increased from about 200 to over 600 in 1997.(6) Some of the reasons cited by employers for offering such benefits include employee recruitment and retention, and the employer's own nondiscrimination policy.(7)

   However, not every employer offering such benefits include both heterosexual and homosexual partners in their policy(8) mainly because they believe heterosexuals can legally marry, whereas, homosexuals cannot.(9) Domestic partner benefits can be defined in either narrow or broad terms.(10) In the broad definition, employment benefits are given to all individuals regardless of their marital status or sexual orientation.(11) On the other hand, the narrow definition extends benefits only to homosexuals and their partners who are legally prohibited from getting married.(12) Of the companies that offer benefits for unmarried employees' partners, about half exclude heterosexual couples.(13)

   Employers offering these benefits to same-sex domestic partners only, may face legal challenges such as marital status and sexual orientation discrimination or equal protection arguments(14) from their unmarried heterosexual employees. In addition, states and municipalities have been increasing the potential of such litigation by passing laws that prohibit discrimination based on sexual orientation and marital status especially in the areas of housing and employment.(15)

   This Note examines the potential of such legal challenges when employers use the narrow definition in structuring their domestic partner benefit programs. In addition, avoiding challenges by simply not offering benefits will be discussed. However, before discussing any discrimination issues, this Note will begin with some background and definitions that will bring the reader up-to-date on domestic partner benefits as they are interpreted today.

2. DOMESTIC PARTNERSHIP DEFINED

   1. Background: The Changing Definition of Family

      Since 1970, the number of cohabitating Americans increased by more than 400 percent.(16) Nearly three million of the 93 million households in the United States consist of unmarried couples.(17) Single-parent households make up an additional fifteen percent of families. Many of these single-parents have unmarried partners.(18) As these statistics show, the traditional family--a working dad, stay-at-home mom, two kids and a dog--is near extinction.(19) In fact, census data demonstrates fewer than ten percent of current households consist of this so-called traditional family.(20)

      The concept of family has largely been founded on the existence of marriage, but the legal definition of family has become quite unsettled.(21) Depending upon the purpose, courts and legislatures have defined family differently.(22) However, the U.S. Census Bureau has remained somewhat with the traditional concept of family by defining it as "two or more persons related by birth, marriage or adoption who reside in the same household."(23)

      More and more Americans today are expanding this concept of family by thinking of family as people to whom they have some emotional tie as opposed to merely a bloodline relationship.(24) In 1989, a survey conducted by Massachusetts Mutual Life Insurance Company asked 1,200 randomly selected adults to define the word "family."(25) Almost three-quarters of the survey respondents chose the more broad description of family as being "a group of people who love and care for one another."(26) Only twenty-two percent of the respondents chose the traditional description of family as being "group of peoples related by blood, marriage, or adoption."(27)

      In California, a task force on the family designed a functional approach to family by suggesting that family could be defined by the "functions" performed by each of its members.(28) These functions included:

      (1) maintaining the physical health and safety of family members by providing for their shelter, food, clothing, health care, and economic sustenance; (2) providing conditions for emotional growth, motivation, and self-esteem within a context of love and security; (3) helping to shape a belief system from which goals and values are derived, and encouraging shared responsibility for family and community; (4) teaching social skills and critical thinking, promoting life-long education, and providing guidance in responding to culture and society; and (5) creating a place for recreation and recuperation from external stresses.(29) This functional definition of family is consistent with societal policies of the promotion of marriage and the encouragement of stable families.(30) It is possible to have traditional families based on a legal marriage where none of the above mentioned functions are present. This type of family may further the societal policy of the promotion of marriage, but it does not encourage or further the policy of family stability.(31)

      If we were to use this functional approach to families, many non-traditional families, such as those not based on a valid marriage, would be legitimized.(32) As it applies to domestic partner benefits, only those families that promote societal family values would be extended such benefits.(33) Companies would not have to worry about unmarried employees signing up "roommates" or "friends."(34)

      In addition to the American public redefining the concept of family, our courts have begun to recognize that the traditional concept of family is changing. For instance, in 1989, the New York Court of Appeals decided that the definition of family should be interpreted broadly. The court in Braschi v. Stahl Associates Co. believed a more realistic view of a family includes a long-term relationship "characterized by an emotional and financial commitment and interdependence."(35) In Braschi, a life partner of a deceased tenant in a rent-controlled apartment moved for a preliminary injunction to prevent eviction.(36) Under New York City Rent and Eviction Regulations, a landlord, upon the death of a rent-control tenant, may not dispossess "either the surviving spouse of the deceased tenant or some other member of the deceased tenant's family who has been living with the tenant."(37) The court believed that the determination as to whether an individual is entitled to noneviction protection under these regulations should be based upon an objective examination of the parties' relationship.(38) The court suggested a number of factors including: exclusivity and longevity of the relationship, level of emotional and financial commitment, manner in which the parties held themselves out to society, and the reliance each of the parties placed on the other for daily family services.(39)

      Since Braschi, New York has amended its rent control ordinance to include eight enumerated factors to determine whether a family exists:

      1) the longevity of the relationship; 2) sharing of household and family expenses; 3) intermingling of finances as evidenced by joint bank accounts, personal and real property, credit cards, and loan obligations; 4) engaging in family-type activities such as jointly attending family functions and social and recreational activities; 5) formalizing of legal obligations and responsibilities to each other by executing wills naming each other as executor and beneficiary, conferring upon each other the authority to make health care decisions, and making a domestic partnership declaration; 6) holding themselves out as family members to other family members and society in general; 7) regularly performing family functions such as caring for each other or each other's extended family members, and 8) engaging in any other action which evidences the intention of creating a long-term, emotionally-committed relationship.(40) These eight enumerated factors came directly out of the Braschi decision.(41)

      The Braschi court recognized that the legal or traditional definition of family was inconsistent with the purpose of the rent-control ordinance which was to protect sudden eviction of family members.(42) This court emphasized relational interests instead of legal and bloodline interests when defining a family.(43)

      In 1983, the California courts also recognized that unmarried couples could be similar in relationship to that of a married couple.(44) In Butcher v. Superior Court of Orange County, a woman sued for loss of consortium when her live-in-partner suffered personal injuries after being struck by an automobile driven by Butcher.(45) At the time of the accident, the couple had lived together for eleven and one half years, had two children together, filed joint income tax returns, and had joint bank accounts.(46) Butcher moved for summary judgment on the woman's claim based on the argument that there was no valid or legal marriage between the couple. The trial court denied Butcher's motion and he appealed.(47) The appellate court recognized a right of the unmarried woman to bring a claim of loss of consortium where the plaintiff can show that the relationship parallels that of a marital relationship.(48) The court concluded that "evidence of the stability and significance of the relationship could...