Loyola Consumer Law Review Volume 6 | Issue 2 Article 4 1994 Domestic Partnerships Benefits: Redefining Family in the Work Place Steven N. Hargrove Follow this and additional works at: http://lawecommons.luc.edu/lclr Part of the Consumer Protection Law Commons Recommended Citation Steven N. Hargrove Domestic Partnerships Benefits: Redefining Family in the Work Place, 6 Loy. Consumer L. Rev. 49 (1994). Available at: http://lawecommons.luc.edu/lclr/vol6/iss2/4 This Feature Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola Consumer Law Review by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. Domestic Partnerships Benefits: Redefining Family in the Work Place by Steven N. Hargrove I. INTRODUCTION tion.4 Insurance plans alone, includ- The complexity and diversity of ing health insurance, constitute six what constitutes a "family" is ever- percent of total compensation costs.' changing. Today, the traditional no- Gay men and lesbians feel discrimi- tion of mother, father, and children nated against by not being able to does not exist in the majority of house- enroll partners in insurance plans or holds. Only 22 percent of America's take time off to care for an ailing 91.1 million households fit the tradi- partner. Domestic partnership provi- tional description of married, hetero- sions lessen the economic discrimina- sexual, two-parent families.' Instead, tion resulting from the ban on same- families consist of a wide range of lifestyles and living arrangements, including: working single-parents, Since lesbians and gay men foster parents, step-parents, unmar- are not allowed to marry, the ried heterosexual partners, homo- push for domestic sexual partners, roommates, extended partnership benefits in the families, and unmarried couples liv- ing together with children. Currently, workplace has become a 4.6 percent of all United States house- cutting-edge issue in the gay holds are comprised of unrelated adults civil rights movement. who share the same residence.2 Some of these households are comprised of lesbians and gay men who are in- sex marriage. While domestic part- volved in long-term, committed rela- nerships also cover opposite-sex tionships. couples, this status is especially im- In fighting for their civil rights, portant to gay couples since they do lesbians and gay men have challenged not have the option of marriage.6 the traditional notion of "family." Domestic partnership benefits are Lesbians and gay men live together in available in a variety of forms. Some on-going relationships, share finan- employers offer only sick and bereave- cial commitments, raise children to- ment leave because it tends to cost gether, care for each other "in sick- less, while other employers offer a ness and in health," and consider them- full range of benefits, comparable to selves to be families within the full those extended to married employees. meaning of the word. With this chang- Over one hundred companies offer ing definition of family comes a push domestic partnership benefits at this for societal recognition and for those time and the number is rapidly ex- benefits conferred upon traditional panding as more employers recognize families and spouses. These range the diversity that exists within their from adoption and foster care to em- work force.7 ployment and tax benefits. This article examines what domes- Since lesbians and gay men are not tic partnership benefits are, why they Steven N. Hargrove received his Master's allowed to marry, the push for domes- are offered, and what the legal re- of Science in Industrial Relations from tic partnership benefits in the work- sponse has been. The issues are then Loyola University Chicago in 1993. He will place has become a cutting-edge issue explored within the context of case receive his J.D. from Loyola University 3 Chicago School of Law this spring. He in the gay civil rights movement. studies of companies and organiza- received a Bachelor of Music and a Master Fringe benefits can now account for tions currently offering domestic part- of Music from Oklahoma City University. 27 percent of employment compensa- nership benefits to their employees. Volume 6 Number 2/Winter 1994 49 I Lead Articles Domestic partnership discrimination, and equality among ner.' 6 Municipal and private employ- provisions lessen the all employees, regardless of marital ers usually offer this type of plan. economic discrimination status. Other municipal employers offer- The concept of domestic partner- ing some sort of domestic partnership resulting from the ban on ship coverage in the private sector plan include: West Hollywood, Santa same-sex marriage. While appears to have been an outgrowth of Cruz, and San Francisco, Calif.; East domestic partnerships also the coverage offered by municipal Lansing and Ann Arbor, Mich.; Bos- cover opposite-sex couples, employers.9 Berkeley, California, is ton and Cambridge, Mass.; Seattle, this status is especially believed to have been the first city to Wash.; Minneapolis, Minn.; New important to gay couples extend health plan benefits to domes- York, N.Y.; Washington, D.C.; and tic partners. 0 Domestic partnership Travis County, Tex. Two cities, Madi- since they do not have the was initially raised as an equity issue son, Wisc., and Takoma Park, Md., option of marriage. by Berkeley's Human Rights Com- allow employees to use leave time to mission." A domestic partnership care for domestic partners.' 7 Some ordinance was enacted as a way to domestic partnership ordinances II. DOMESTIC PARTNERSHIP: eliminate discrimination based upon merely permit a couple to register for WHAT IS IT? marriage as a factor in granting health purposes of recognition, although most Generally, a domestic partnership benefits. The ordinance is intended to bestow limited benefits upon employ- is defined as "two people who share a remedy inequities in the provision of ees of the municipality. A few even primary residence, are financially and health care benefits. give full benefits to the registered emotionally interdependent, and have In 1985, Berkeley extended health partner of a municipal employee. a commitment to caring for each insurance, bereavement leave, and No state has extended health care other's needs."8 This term can apply other spousal benefits to the domestic coverage to the domestic partners of to opposite-sex or same-sex partners. partners of city employees. 2 By 1987, its employees, although Ohio does Some companies offering domestic all of Berkeley's insurance carriers give state employees sick and bereave- partnership benefits may provide ben- offered health coverage for domestic ment leave to care for a "significant efits to all unmarried employees, re- partners. 3 Berkeley's policy requires other."8 gardless of sexual orientation. Others unmarried couples to file an "Affida- limit domestic partnership benefits to vit of Domestic Partnership," attest- III. JUDICIAL RESPONSE gay men and lesbians because oppo- ing that they have lived together for at The courts have become increas- site-sex couples have the option of least six months and "share common ingly involved in issues affecting do- marriage. necessities of life."'4 The individuals mestic partnerships. Marriage and Benefits employers confer upon filing must be over eighteen years of family are the formal basis upon which domestic partners include various age, must affirm that they are each a majority of employee benefits are combinations of bereavement leave, other's sole domestic partner, and must granted. To date, no court has al- family sick leave, health insurance declare that they are "responsible for lowed a same-sex couple to engage in coverage, subsidized travel and relo- their common welfare."' 5 Should the a state-sanctioned marriage. 19 Couples cation expenses, and employee dis- domestic partnership dissolve, the who have a committed relationship counts. Employers decide on a ben- couple must file a statement of termi- but choose not to marry, or cannot efit plan based upon such factors as nation. The employee would have to marry, should not be excluded from their employees' needs, public pres- wait six months to register a new part- the benefits available to married sure, litigation, and the company's couples. financial situation. In some instances, Some companies offering A few court decisions have ex- this decision will depend upon the tended same-sex couples the advan- domestic partnership benefits availability of an insurance carrier tages previously thought appropriate willing to cover domestic partners. may provide benefits to all only for heterosexual spouses. The The philosophy behind domestic unmarried employees, bulk of the litigation is focused on the partnership coverage is that an em- regardless of sexual current legal definition of "family," ployee and his or her partner are, in orientation. Others limit as used in ordinances, statutes, and effect, spouses. Benefits are made domestic partnership benefits policies. One of the goals of the les- available to an employee and his or bian and gay community "is to expand to gay men and lesbians her partnerjust as they are available to the meaning of 'family' so that les- an employee and his or her spouse. because opposite-sex bian and gay families are legally pro- The goals of domestic partnership couples have the option of tected in the same way as heterosexual coverage are those of fairness, non- marriage. families."2 Domestic partnership rec- Loyola Consumer Law Reporter Lead Articles ognizes that "family" may include a Since Hinman's partner was not a nation was permissible.31 Although category of not-married, but not- spouse, coverage was denied. AT&T's promise of non-discrimina- single, people. The Hinman court declined to ac- tion was explicit, the court found that One of the first cases to deal with knowledge that lesbian and gay since the policy at issue did not appear the interpretation of "family" was couples can have relationships simi- in the benefit plan documents, the Braschi v.