Questions about the future of employee domestic partner benefits offered by many of the nation’s most prominent private sector employers emerged several years ago when states began passing same-sex marriage laws.
Verizon, Delta Airlines, IBM and the Corning glass and technology company were among the first to announce they were discontinuing domestic partner benefits for employees living in states where same-sex marriage had been legalized.
Each of those firms along with others said they were pleased to offer full spousal benefits to their gay and lesbian employees who marry.
According to sources who monitor trends in employee benefit programs, the U.S. Supreme Court’s historic ruling in June legalizing same-sex marriage in all 50 states has prompted more private sector employers as well as public employers such as county governments and state-affiliated universities to drop domestic partner benefits for their employees.
“We have heard in part through news reports but also through our health desk that there are some private companies and also some public entities that are now wrapping up their domestic partner benefits programs because same-sex couples can marry,” said Camilla Taylor, an attorney with the LGBT rights group Lambda Legal Defense and Education Fund.
“And that’s unfortunate because we believe people should not have to get a legal marriage in order to be respected as a family,” Taylor told the Washington Blade.
Lambda Legal and several other national LGBT rights organizations, including the Human Rights Campaign, have issued statements calling on employers to retain domestic partner benefits for unmarried employees.
Some LGBT rights advocates have said forcing employees in a same-sex relationship to marry as a condition for receiving partner benefits such as health insurance coverage could subject them to discrimination in states where anti-LGBT discrimination remains legal.
“If an LGBT employee is, in effect, ‘outed’ by being required to obtain a public marriage license in a state that doesn’t provide explicit nondiscrimination protections, it could place that employee and their family at risk of being denied credit, housing and public accommodation,” HRC legal director Sarah Warbelow told the New York Times in June shortly after the Supreme Court ruling on marriage.
Other LGBT advocates, including Taylor of Lambda Legal, have said they don’t see marriage exposing same-sex couples to discrimination to a significant degree greater than same-sex partners living as couples and receiving domestic partner benefits.
“If you’re talking about solely private employers quietly offering health benefits to their employees who may not be married to their significant others then that may be what people are talking about when they say you may not want to get married because that’s a public record document,” Taylor said.
“However, there are so many ways in which someone’s relationship is discoverable that it seems like choosing not to marry is not very effective in today’s information age,” she said.
Lambda Legal, HRC and five other national LGBT organizations issued a joint statement in June saying an employer cannot legally fire someone who is married to a same-sex partner.
“Even though no federal statute explicitly prohibits sexual orientation or gender identity discrimination, the Equal Employment Opportunity Commission (EEOC) has determined that firing someone because they married a person of the same sex constitutes impermissible sex discrimination under federal law,” the statement says.
Taylor and other LGBT activists who favor retaining domestic partner benefits for unmarried same-sex and opposite-sex couples say the most important reason for doing that is to offer gay and straight couples a choice.
Todd Solomon, an attorney with the Chicago-based law firm McDermott Will & Emery, which specializes in employee benefits law, said nearly all of the companies that have dropped domestic partner benefits since same-sex marriage became legal had limited those benefits to same-sex couples.
“If their starting point was covering same-sex and opposite-sex unmarried couples, which many companies do,” Solomon said, “they’re not changing anything in my experience because they’re already accustomed to covering a sector of employees who can legally marry but have just chosen not to.”
Solomon said companies he knows that have dropped domestic partner benefits have a record of being LGBT supportive due, in part, to their earlier decisions to provide those benefits to same-sex couples that were barred by law from marrying.
From an administrative standpoint, said Solomon, company domestic partner programs are complex and burdensome due to federal tax laws that require the employee receiving the partner benefit to pay a tax as if it were taxable income.
“So it’s not being dropped in the spirit of now we don’t have to offer this benefit and we don’t want to protect gay and lesbian employees,” Solomon said. “It’s being dropped in the spirit of halleluiah – now we have marriage equality. Everybody can get married if they want this benefit. And we can get rid of this ridiculous tax regime that we’ve had to manage for years and years and this burdensome administrative scheme we’ve had to do to cover same-sex partners under our plan.”
Earlier this month, Tennessee-based companies Bridgestone Americas, Hospital Corporation of America and Vanderbilt University announced they were phasing out their employee domestic partner benefits, according to WSMV-TV News in Nashville.
In October, the Orange County, Fla., Commission voted unanimously to discontinue its employee domestic partner benefits effective Jan. 1, 2016. Employees currently enrolled in the county’s DP program were given a one-year grace period to get married as a condition for receiving full spousal benefits, the blog Business Insurance.com reports.
Taylor noted that Cook County, Ill., in which the city of Chicago is located, is also phasing out its domestic partner registration program.
Meanwhile, several states that have enacted domestic partner or civil unions laws in past years have also either phased out or automatically converted their domestic partner or civil union registrations into marriages after the states passed same-sex marriage laws, according to the National Conference of State Legislatures.
Connecticut, Delaware, New Hampshire, Rhode Island and Vermont are among the states that converted civil unions to marriages, the NCSL says.
The D.C. City Council included a provision in the same-sex marriage law it passed in 2009 that explicitly retains D.C.’s domestic partner law and DP registrations. The D.C. marriage equality law, which took effect in 2010, gives same-sex and opposite-sex couples who were registered as domestic partners the option to convert their partnerships into a marriage free of charge if they wish to do so.
Jesus Ranon, an economist with the U.S. Bureau of Labor Statistics, said data on employee domestic partner benefits that the BLS began collecting in 2012 shows that the availability of DP benefits had not changed significantly as of March 2015.
A chart published on the BLS website shows that as of March, 37 percent of all U.S. “private industry workers” are estimated to have access to same-sex domestic partner benefits for health care. The chart shows that 32 percent of all workers in private industry had access to opposite-sex domestic partner benefits for health care.
A separate BLS chart shows that 36 percent of “civilian workers,” a category that includes private sector and civilian public employees working for government agencies, had access to health-related DP benefits for same-sex couples. Thirty-one percent of those in the civil workers category had access to health-related DP benefits for opposite-sex couples, the BLS data show.
In its 2016 Corporate Equality Index report, which surveys private sector employers on LGBT-related personnel policies, HRC reports that 64 percent of U.S. Fortune 500 companies offered domestic partner benefits in 2015 to LGBT employees. HRC released the 2016 report in November.
The report says 94 percent of the Fortune 500 companies that participated in the HRC survey reported they offered domestic partner benefits in 2015. It says that among Fortune 500 companies that did not participate in the survey, 40 percent offered DP benefits.
The HRC Corporate Equality Index report rates companies for policies pertaining to LGBT employees on a scale of 0 to 100, which is the highest possible score. The report says 25 rating points are awarded to companies that provide various forms of domestic partner benefits, including health insurance and other partner-related benefits. It says 10 rating points are given for “equal health coverage for transgender individuals without exclusion for medically necessary care.”
An HRC spokesperson couldn’t immediately be reached to determine whether HRC is keeping track of companies surveyed in its Corporate Equality Index report that have dropped domestic partner benefits for same-sex or opposite-sex employees.