Domestic Partner Benefits On Campus: A Litigation Update1
By Donna R. Euben, AAUP Counsel*
Colleges and universities increasingly are extending benefits beyond the families of married faculty members to the domestic partners of gay and lesbian professors. Nearly 300 colleges and universities now offer some kind of domestic partnership benefit, which may include insurance policies (health, disability, life); tuition remission; child care; family and bereavement leaves; and retirement plans.2 Currently, all Big Ten universities except for the University of Wisconsin-Madison provide and pay for domestic partner benefits.3 Seventy-four percent of the top 50 national four-year institutions as ranked by US News & World Report provide domestic partnership benefits.4 However, many institutions are still in the debating stages and a few have continued to deny domestic partner benefits based on various rationales.
The American Association of University Professors (AAUP) supports the provision of such benefits to professors. The Association’s On Discrimination provides:
The Association is committed to use its procedures and to take measures, including censure, against colleges and universities practicing illegal or unconstitutional discrimination, or discrimination on a basis not demonstrably related to the job function involved, including but not limited to age, sex, disability, race, religion, national origin, marital status, or sexual orientation.5
The Association also adopted the following resolution at its 1995 Annual Meeting:
The American Association of University Professors is opposed to discrimination based upon an individual’s sexual orientation in the selection of faculty, the granting of promotion or tenure, and the providing of other conditions and benefits of academic life. This annual meeting notes with concern that faculty policies at many colleges and universities do not prohibit discrimination on the basis of sexual orientation. This omission contributes to a climate of hostility on campuses toward gay, lesbian, and bisexual faculty, students, and staff, and thus reinforces the false idea that such discrimination is acceptable in the higher education community. The Eighty-First Annual Meeting therefore calls upon the academic community to work for the elimination of discriminatory practices which may adversely affect faculty members, students, and staff because of their sexual orientation, and to adopt policies that will give guidance and support to these efforts.
A majority of the approximately 300 higher education institutions offering such benefits have voluntarily adopted domestic partnership benefits so as to retain and recruit professors.6 According to the Lesbian and Gay Rights division of the American Civil Liberties Union, public universities in 20 states provide benefits to employees’ domestic partners. Of those 20 states, 12 have laws or constitutional amendments banning recognition of same-sex marriage. The ACLU calculates that 18 of the 74 statewide university systems in the country provide domestic partner benefits, and 150 of the nation’s 530 individual state-funded universities provide benefits to employees’ same-sex partners. 7Eighty percent of the schools in the Association of American Universities offer same-sex benefits.8
At other institutions, however, faculty members are taking legal action to establish such benefits. They argue that a college or university violates the law when it provides benefits to families of its married professors while refusing to provide those same benefits to the families of gay or lesbian faculty members. Such legal obligations may flow from state constitutions, state laws, municipal ordinances, collective bargaining agreements, or institutional policies. While neither the U.S. Constitution nor federal law protects gays or lesbians from discrimination, federal constitutional and legal protections exist against discrimination based on marital status. A new development in this area of law is how a same-sex marriage law, which exists in Massachusetts, affects the provision of domestic partnership benefits.
Below is a review of some recent domestic partnership litigation involving faculty members.
State Constitutional Protections
Tanner v. Oregon Health Sciences University : A unanimous Oregon appellate court, upholding a 1996 trial court ruling, found that three lesbian university employees, including two professors of nursing, were entitled to health and life insurance benefits for their partners under the Oregon constitution. Before trial, the state legislature transformed the university from a “state agency” to a “public corporation.” However, the court ruled that the university remained a government entity subject to the state constitution. The plaintiffs asserted that under the state constitution’s “privileges and immunities” clause, which is similar to the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, they were members of a class of citizens—homosexual couples—that was being denied the privileges of insurance benefits. The Oregon constitution provides that “no law shall be passed granting to any citizen or class of citizens privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.” The court agreed, finding that while the university had not intended to discriminate against homosexuals, its policies, which entitled married couples to such benefits, had that “undeniable effect.” The university argued that its health plan was the same for all unmarried couples, regardless of their sexual orientation. “That reasoning misses the point,” the court responded. “Homosexual couples may not marry. Accordingly, the benefits are not made available on equal terms. They are made available on terms that, for gay and lesbian couples, are a legal impossibility.” 971 P.2d 435 (Or. Ct. App. 1998).
Snetsinger v. State of Montana : In 2002 the ACLU of Montana filed a complaint in state court on behalf of a lesbian professor against the University of Montana for having failed to provide health benefits to same-sex partners. The ACLU argues that the university’s policies violated the Montana constitution’s equal protection clause as well as the right to pursue life’s basic necessities. The Montana Supreme Court agreed and ruled in favor of the professor.9 The court held that “any organization that adopts an administrative procedure in order to provide employment benefits to opposite-sex partners who may not be in a legal marital relationship must do the same for same-sex couples. To not do so violates equal protection.” 325 Mont. 148 ( Mont. 2004).
Helgeland v. Board of Regents, University of Wisconsin : In April 2005 the ACLU filed a complaint in state court on behalf of six lesbian employees one of whom is a retired English professor from the University of Wisconsin , Madison , and two of whom are graduate students holding research and teaching assistant positions at UW-Madison. The complaint alleges that the denial of benefits to gay and lesbian couples violates the equal protection clause of the state constitution."10
State Anti-Discrimination Laws
So far 13 states have amended their constitutions to define marriage as being the union between a man and a woman.11 How these amendments will affect domestic partnership benefits in academia is evolving. At least one case is currently pending.
National Pride at Work v. Granholm : In 2004, Michigan amended its constitution to define marriage as a union between a man and a woman. After the enactment of the amendment, Michigan ’s governor, Jennifer Granholm, questioned the legality of providing state-funded domestic partnership benefits. In May 2005, Michigan State University professors and other state employees filed a complaint seeking a judicial declaration to establish that the marriage amendment does not bar public employers from providing benefits to domestic partners. The employees’ brief supporting their motion for summary judgment cited cases from eight state high courts holding that receiving domestic partnership benefits does not constitute a new form of marital status or create any sort of policy on marriage. These courts held that domestic partnership benefits are unrelated to marital status and were not preempted by state laws governing marriage. The brief also emphasizes that Michigan ’s marriage amendment does not mention health care benefits for domestic partners or any other employment compensation for designated domestic partners, same sex or opposite sex. 12
The two states that recognize civil unions, Vermont and Connecticut, require that all state government employers provide benefits to the dependents of a party to a civil union if the government provides those benefits to married couples. 13 However, private employers who have plans governed under the federal Employee Retirement Income Security Act of 1974 (ERISA) are not required to offer coverage to civil union partners. 14 Insurers are required to offer policies that include civil union coverage to private employers in Vermont and Connecticut, but private employers may decide who will be eligible to enroll in their plans. 15
Massachusetts , the only state to recognize same-sex marriages, requires insurance plans subject to its insurance regulations to cover same-sex spouses on the same terms as they cover different-sex spouses. 16 Like Vermont and Connecticut , however, employer plans governed by ERISA may deny benefits to same-sex spouses. 17
State Anti-Discrimination Suits
Willard Miller v. University of Vermont , 24 VLRB 1 ( Jan. 24, 2001 ): The University of Vermont was successful against a faculty member claiming benefits for his opposite-sex domestic partner. The professor argued that UVM’s policy of providing benefits only to same-sex partners was discriminatory on disparate treatment and disparate impact grounds. The Vermont Labor Relations Board found in the university’s favor. The faculty member did not appeal.
University of Alaska v. Tumeo : The Alaska Supreme Court ruled that the university’s denial of health insurance to its employees’ domestic partners violated the Alaska Human Rights Act, because the university was discriminating on the basis of marital status. In so ruling, the court found that the state legislature’s recent amendments to the Alaska Human Rights Act, which amended the law to permit “different retirement and health benefits to certain employees by differentiating between benefits provided to employees with spouses or children and to other employees,” did not “moot” the case because it was controlled by the law in existence at the time the case was commenced. 933 P.2d 1147 ( Alaska 1998).
Rutgers Council of AAUP Chapters v. Rutgers, the State University : Under the New Jersey Law Against Discrimination, the AAUP chapter at Rutgers University, on behalf of five gay professors, filed litigation against the state of New Jersey and the university claiming that the failure to offer benefits to homosexual couples similar to those provided to heterosexual couples constituted unlawful discrimination on the basis of either marital status or sexual orientation. The New Jersey law exempts employee benefit plans from its prohibition against discrimination. The court split the cases and, in the case against the state, found that the state health plan was not obliged to cover same-sex partners. However, in an effort to resolve the five-year-old lawsuit, the university’s board of governors authorized the renegotiation of “health care coverage not currently provided . . . for bona fide same sex domestic partners.” 689 A.2d 828 (N.J. Super. Ct. App. Div. 1997), cert. denied, 707 A.2d 151 (N.J. 1998).
Municipal Anti-Discrimination Ordinances
Henson v. The University of Pittsburgh : In 1996, the ACLU filed a lawsuit against the University of Pittsburgh on behalf of university employees and a former legal writing instructor alleging that the administration denied health benefits to their domestic partners. In an effort to dismiss the suit, the university challenged in court a Pittsburgh municipal ordinance protecting gays and lesbians from discrimination in employment. 18 However, effective January 1, 2005 , the university has agreed to offer same-sex benefits. According to the chancellor, a major factor initiating the change of policy was the need to stay competitive in the recruitment of “top talent.”19 Accordingly, t he ACLU withdrew its complaint, stating, “This lawsuit was always about equal treatment for lesbian and gay employees. Now that the University has agreed to provide equal health benefits, we’ve won.” 20
Collective Bargaining Agreements
State of Connecticut and State Employees Bargaining Agent Coalition (Jan. 31, 2000): An arbitrator awarded domestic partner benefits--consisting of family health and pension coverage--to unionized state employees. The decision concerned gay and lesbian couples only; it did not apply to unmarried state union employees who maintain domestic partnerships with persons of the opposite sex. The arbitrator rested his decision on the following: that the contract at issue was a 20-year settlement and that such benefits will be "widespread well before" 2017, when the contract is to expire; "[f]rom a labor employment perspective, there is no basis to justify the inequity between employees with spouses and those with spouse equivalents"; and payment for such benefits by the State would not "pose a hardship." The arbitrator concluded that "[t]he benefit creates compensation equity for similarly situated employees, which, if anything, serves the interests of the entire unit." 21
Reading Area Community College v. Federation of Reading Area Community College : The court ruled that a labor arbitrator exceeded his authority in finding that the denial of health insurance coverage to the domestic partner of a community college counselor violated the collective bargaining agreement’s anti-discrimination policy. The agreement’s policy provided:
Neither the Employer nor the Federation shall discriminate against or harass any Employee or any applicant for employment because of race, creed, color, national origin, gender, sexual orientation, age, marital status, disability, or membership in (or lack thereof), or activities on behalf of the Federation. Harassment includes, but is not limited to, slurs, epithets, threats, derogatory comments, unwelcome jokes, teasing, sexual advances, and other similar verbal or physical conduct.
Based on this policy, the arbitrator directed the college “to afford, on the same basis, health insurance coverage to heterosexual and homosexual domestic partners of bargaining unit members.” The court ruled that the labor arbitrator’s award was “manifestly unreasonable,” because it did not “draw its essence” from the agreement. The court reasoned:
The term “spouse” is not defined anywhere in the Agreement as to include the same-sex or opposite sex domestic partners, that being those who are not married conventionally or by common law. . . . Here, the common sense meaning of ‘spouse’ does not include same-sex or opposite sex domestic partners, and there is no evidence whatsoever that the parties intended otherwise.
This reasoning was supported by the “fact that the College rejected the Federation’s request for the addition of a provision to the Agreement to provide health insurance coverage to same-sex domestic partners.” No. 97-11566, Pennsylvania Commonwealth Pleas Court, 90:46 Berks County Legal J . 8 ( July 15, 1998 ).
In re: Michigan State University and Clerical-Technical Union of Michigan State University : The arbitrator found that the university had not violated collective bargaining agreement provisions prohibiting discrimination when it declined to extend health care benefits to the domestic partners of gay and lesbian employees. The parties’ collective bargaining agreement proscribed discrimination based on “sexual orientation and marital status.” Noting that various provisions of the agreement were ambiguous--that they might apply to “domestic partners” as well as to “spouses”--the arbitrator looked to the past practices of the parties and their bargaining history to discern the intentions of the parties at the time the contract was negotiated. Because domestic partners had never been included in the terms of benefit protection in other provisions of the agreement, and because proposed changes to cover “domestic partners” specifically had not been adopted previously, the arbitrator found that neither of the parties had intended that domestic partners be covered at the time that the contract was formed. 104 Lab. Arb. (BNA) 516 (1994).
In re: Kent State University and AAUP, Kent State Chapter : In this decision, the arbitrator found that the university did not violate the controlling collective bargaining agreement when it denied the extension of medical and dental benefits to a professor’s same-sex partner. The agreement’s preamble provided, in relevant part, that “the parties reaffirm their belief in the moral and legal principles supporting a University environment free of decisions and judgments based on race, color, religion, sex, age, disability, national origin or sexual orientation.” The university’s equal opportunity policy provided that no employee or applicant for employment be discriminated against for an unlawful purpose, including sexual orientation. The arbitrator rejected the union’s arguments based on those policies, the language of the insurance plan, and the university’s past practice. 103 Lab. Arb. (BNA) 338 (1994).
Grievance of B.H., S.S., C.M. and J.R .: In a complaint filed by four professors, the Vermont Labor Relations board ordered the University of Vermont to provide health and dental benefits to its employees’ same-sex partners to comply with the institution’s non-discrimination and equal opportunity policies. In so doing, the board noted that
the absence of discriminatory intent on the part of the Employer to discriminate against gay and lesbian employees on the basis of sexual orientation is not determinative. The consequences of the Employer’s exclusion of unmarried domestic partners of employees from health benefits coverage is determinative. It is self-evident here that the consequences are that there is a markedly disproportionate impact on gay and lesbian employees compared to heterosexual employees. This is because heterosexual employees can marry their partners, and many obviously do, and thereby obtain benefits coverage for them. Meanwhile, gay and lesbian employees are unable to legally marry their domestic partners and, thus, inevitably suffer disproportionately to their heterosexual colleagues with respect to terms of benefits coverage.
In so ruling, the board rejected the university’s argument that the cost of benefits justified the discrimination: “the expense of changing employment practices is not a business purpose that will validate the effects of an otherwise unlawful employment practice.” Vermont Labor Relations Board No. 92-32 (June 4, 1993).
Developing Domestic-Partnership Benefit Policies
Developing a domestic partnership benefits package may provide a college or university an edge in recruiting faculty. For example, a Vanderbilt University official in 2001 commented that the university decided to offer domestic partnership benefits “to help us to continue to recruit and retain talented faculty and staff.” 22
Conversely, the University of Wisconsin ’s lack of domestic partnership benefits has had an adverse effect on faculty recruiting and retention. Peter Spear, the university’s provost, told a reporter, “ The absence of domestic partner benefits is really a serious recruiting issue for us. We know of instances where we have lost outstanding candidates because of it.” 23 Recently, UW-Madison’s dean of students, Luoluo Hong, left for Arizona State University in part because of the lack of domestic partnership benefits. Even though Hong is heterosexual and married, she became frustrated by the inability to attract and retain bright faculty for whom domestic partnership benefits was an issue. 24
In developing domestic partnership benefit programs, professors should ensure that their policy:
identifies domestic partnership benefits that match the benefits offered to the legal spouses of employees;
defines domestic partner;
justifies offering domestic partnership benefits (justification may be found in an institution’s non-discrimination or equal opportunity policy, or in the more general concept of equal pay for equal work);
estimates costs to the college or university and to those eligible for the package;
explains the tax ramifications for the institution and the affected faculty; and
provides information about the institution’s insurance policies.
For further information on higher education institutions that offer domestic partnership benefits, or for support in advocating such policies, see the Web pages of the Human Rights Campaignand the Lambda Legal Defense and Education Fund.
For additional information about AAUP's involvement in organizing around gay and lesbian issues, contact Martin Snyder who staffs AAUP's Gay, Lesbian, Bisexual, Transgender Faculty Concerns Committee.
Note: If you are aware of other domestic partnership cases at higher education institutions, or helpful resources for administrators and professors on this issue, please forward them to the Legal Department. Thank you for your assistance.
* Special thanks to Jamie Basham, 2005 AAUP law fellow, for her assistance updating this document.
To search for employers, including colleges and universities, with domestic partner benefits click here.
For tips on negotiating domestic partnership benefits at your institution, click here.
William C. Duncan, Domestic Partnership Laws in the United States : A Review and Critique, 2001 B.Y.U. L. Rev. 961 (2001).
David Orgon Coolidge & William C. Duncan, Marriage and Democracy in Oregon : The Meaning and Implications of Tanner v. Oregon Health Sciences University , 36 Willamette L. Rev. 503 (2000).
M. V. Lee Badgett, Equal Pay for Equal Families , Academe: Bulletin of the American Association of University Professors 26 (May-June 1994).
James P. Baker, Equal Benefits for Equal Work? The Law of Domestic Partner Benefits, 14 Labor Lawyer 23 (1998).
Jodie Leith Chusid, Tanner v. Oregon Health Sciences University : Justifying the Mandate for Domestic Partner Benefits , 8 Colum. J. Gender & L. 261 (1999).
Donna R. Euben, Domestic Partnership Benefits for Faculty: We are Family?, Academe 111 (Mar.-Apr. 1999).
Shawn M. Filippi and Edward J. Reeves, Equality or Further Discrimination? Sexual Orientation Nondiscrimination in Oregon Statutory Employment Law after Tanner v. Oregon , 3 Small & Emerging Bus. Law 269 (1999).
Ann H. Franke, Consider Domestic-Partner Benefits for Faculty and Staff, Trusteeship 26 (Sept.-Oct. 1995).
Bruce Kasten et al., Domestic-Partner Benefits Plans Raise Legal Issues, Nat’l Law J., June 8, 1998 , at B7.
Linda Laarman, Employer Health Coverage for Domestic Partners—Identifying the Issues, in Employment Issues in Higher Education: A Legal Compendium (NACUA, 1995).
Ryiah Lilith, Caring for the Ten Percent's 2/4: Lesbian and Gay Parents' Access to Parental Benefits, 16 Wis. Women’s L.J. 125 (2001).
Howard Pianko and Dean L. Silverberg, Domestic Partnership Benefits on the Rise, What are the Legal and Tax Issues?, 218 N.Y.L. J. S3 (1997).
Bill Schackner, Pitt Challenges City Ban on Gay Discrimination , Pittsburgh Post - Gazette, Feb. 4, 1999 .
Robin Wilson, For Gay Academics, Benefits for Partners Have a Financial and Emotional Impact, Chron. of Higher Educ., Feb. 12, 1999 , at A10.
1. This memorandum provides a brief overview of the law as of July 2005; it is not intended as binding legal advice. It is always important to consult with your own lawyer and to obtain information about the most recent legal and legislative developments pertinent to your jurisdiction and institution. Back to Text
2. Human Rights Campaign Foundation, Employers that Offer Domestic Partner Health Benefits, available here. Back to Text .
3. Dan Ross, Domestic Partnership Benefits at Big Ten Universities, at http://my.execpc.com/~dross/pol/DPBBig10.html (visited June 20, 2005 ) .Back to Text
4. Human Rights Campaign, 2004 State of the Workplace Report, available at http://www.hrc.org/Content/ContentGroups/Publications1/State_of_the_Workplace/Workplace0603.pdf. Back to Text
5. On Discrimination , Policy Documents & Reports American Association of University Professors 185 (2001 ed.). .Back to Text
6. Human Rights Campaign Foundation, Employers that Offer Domestic Partner Health Benefits, at http://www.hrc.org/Template.cfm?Section=Search_the_Database&Template=/CustomSource/WorkNet/srch.cfm&searchtypeid=3&searchSubTypeID=1 (visited June 20, 2005 ). .Back to Text
7. American Civil Liberties Union, University of Montana System 's 'Desperate and Cynical’ Effort to Deny Gay Employees' Day in Court Should be Rejected (visited Nov. 8, 2002 ) http://www.aclu.org/LesbianGayRights/LesbianGayRightsMain.cfm. Back to Text
8. Associated Press, Pitt to Offer Same-Sex Benefits, available at http://www.kdka.com/local/localnewspitt_story_246135534.html (visited June 21, 2005 ). Back to Text
9. James Esseks , Montana Constitution Guarantees Health Benefits for Same-Sex Partners, 41-Mar Trial 80 (2005). Back to Text
10. American Civil Liberties Union,Lesbian and Gay Rights at http://www.aclu.org/LesbianGayRights/LesbianGayRights.cfm?ID=18069&c=101. Back to Text
11. Arkansas , Georgia , Kentucky , Louisiana , Michigan , Mississippi , Missouri , Montana , North Dakota , Ohio , Oklahoma , Oregon and Utah . Human Rights Campaign Foundation, at http://www.hrc.org/Template.cfm?Section=The_Issues&CONTENTID=24167&TEMPLATE=/ContentManagement/ContentDisplay.cfm (visited June 20, 2005 ). Back to Text
12. A copy of the complaint can be found at http://marriagelaw.cua.edu/nat%20pride%20at%20work%20v%20MI%20complaint.pdf. Back to Text
13. The Vermont Civil Union law is provided in 2000 Vt. Laws 91. The Connecticut Civil Union law is provided in Connecticut Substitute Senate Bill 963 (2005). Back to Text
14. Guide for Civil Union Partners in Vermont , at http://www.bishca.state.vt.us/civilunion/civiluguideweb.htm#tax (visited July 5, 2005); Nancy L. Ober & Paul R. Lynd, Still Tied in Knots: An Employer Update On Same-Sex Marriage And Domestic Partner Issues, at http://www.littler.com/nwsltr/asap_SameSexMarriage_6_05.htm (visited July 5, 2005). Back to Text
15. Id. Back to Text
16. The Massachusetts case establishing the right to same-sex marriage is Goodridge v. Department of Public Health , 798 N.E.2d 941 (Mass. 2003). GLAD, S ame-Sex Spousal Health Benefits in Massachusetts after Goodridge , at http://www.glad.org/rights/HealthBenefitsAfterGoodridge.html (visited July 5, 2005 ). Back to Text
17. Id. Back to Text
18. Bill Schackner, Pitt Challenges City Ban on Gay Discrimination , Pittsburgh Post-Gazette , Feb. 4, 1999 , at B1. Back to Text
19. ACLU: Lesbian & Gay Rights, ACLU Ends Discrimination Lawsuit Against the University of Pittsburgh Following Decision to Provide Equal Benefits to Gay Employees (visited June 20, 2005 ). Back to Text
20. Id. Back to Text
21. Domestic Partners: Connecticut State Employees Entitled to Same-Sex Domestic Partner Benefits, 38 Gov’t Employees Relations Report 183 (2000). Back to Text
22. Vanderbilt Register Online, Vanderbilt Extends Benefits to Domestic Partners, at http://www.vanderbilt.edu/News/register/Aug23_99/story1.html (visited June 21, 2005 ). Back to Text
23. U.Va Pride, University of Wisconsin Faces Isolation Over Gay Benefits , at http://indorgs.virginia.edu/uvapride/view_news.php?newsID=304 (visited June 20, 2005 ). Back to Text
24. Inside Higher Ed News, Uncovered, ( June 16, 2005 ), at http://www.insidehighered.com/news/2005/06/16/wisconsin (visited June 22, 2005 ). Back to Text