Topic:
BENEFITS (GENERAL); HEALTH INSURANCE; MUNICIPAL ORDINANCES; MARRIAGE (GENERAL); STATISTICAL INFORMATION;
Location:
INSURANCE - HEALTH;

OLR Research Report


July 13, 2006

 

2006-R-0416

OPPOSITE-SEX DOMESTIC PARTNERS AND HEALTH INSURANCE

By: Janet L. Kaminski, Associate Legislative Attorney

You asked if opposite-sex domestic partners (i.e., a cohabitating heterosexual couple) are eligible for health insurance as each others' dependents and if not, if this is discrimination. You also asked how this issue has been addressed by the courts and whether insurance companies offer coverage for opposite-sex domestic partners.

OLR is not authorized to give legal opinions and this should not be interpreted as such.

SUMMARY

Employers sponsoring group health insurance plans for their employees define the policy's eligibility criteria. When they purchase a policy from an insurance company or health maintenance organization, the eligibility requirements are specifically stated in the policy. Thus, whether opposite-sex domestic partners are eligible under the policy is determined by the employer. For municipalities, coverage decisions are usually set by ordinance, collective bargaining agreement, or both. Many employers extend their eligibility to include domestic partners; some limit it to same-sex partners while others extend it to both same-sex and opposite-sex partners. Those that limit it to only same-sex partners may do so to limit plan costs or because same-sex partners cannot legally marry and obtain spousal benefits.

The federal Employee Retirement Income Security Act (ERISA) largely preempts state and local regulation of employee health benefit plans. As a result, a discrimination claim regarding eligibility for employment benefits will most likely be reviewed under Title VII of the federal Civil Rights Act instead of state law. There have been only two federal district court cases alleging sex discrimination under Title VII because an employer's benefit policy covers same-sex partners but not opposite-sex partners. Neither court found discrimination under Title VII.

An administrative labor case in California, which is not binding law but may be viewed as persuasive authority, found that the City of Oakland's domestic partner eligibility requirements for health insurance discriminated based on sexual orientation. The policy included coverage for “domestic partners and eligible dependents of gay and lesbian employees.” The decision held that using an employee's actual or perceived sexual orientation as the benefit eligibility criterion was discriminatory. This case is unique because the benefit plan is for a governmental entity, which is not subject to ERISA, and therefore the state law involved was not preempted.

Attorney Paul R. Lynd argues in a law journal article that limiting domestic partner eligibility to same-sex couples violates Title VII based on a theory of discrimination against a person because of the sex of the domestic partner with whom he associates (Domestic Partner Benefits Limited to Same-Sex Couples: Sex Discrimination under Title VII, 6 Wm. & Mary J. Women & L. 561, Spring 2000; copy enclosed). To our knowledge, this theory has not been tested in court with regard to domestic partners but has been successfully applied in race discrimination cases.

An individual purchasing insurance directly from an insurance company should discuss whether the policy may cover his opposite-sex domestic partner as a dependent with his agent or the insurance company. There is no legal prohibition or requirement that an insurance company offer coverage to opposite-sex domestic partners or same-sex domestic partners who are not parties to a civil union.

According to the San Francisco Human Rights Commission, which monitors and reports on insurance companies that offer domestic partner coverage, numerous insurance companies writing health insurance in Connecticut offer same-sex and opposite-sex domestic partner coverage, including Aetna, Anthem Blue Cross Blue Shield, CIGNA HealthCare, ConnectiCare, Guardian Life Insurance, Oxford, and United Healthcare. The companies have different requirements for proving domestic partner status.

CONNECTICUT POPULATION

The U.S. Census Bureau's Census 2000 counted 1,301,670 households in Connecticut with married and unmarried partners. Of these, 68,873 were unmarried-partner households (7,386 same-sex and 61,487 opposite-sex). Table 1 shows a county-by-county breakdown of Connecticut households, including unmarried partners.

Table 1: Connecticut Households

County

Total Households

Same-Sex Partner Households

Opposite-Sex Unmarried Households

Fairfield

324,232

1,846

14,115

Hartford

325,098

1,977

18,043

Litchfield

71,551

428

3,817

Middlesex

61,341

352

3,310

New Haven

319,040

1,750

17,027

New London

99,835

538

6,278

Tolland

49,431

276

2,814

Windham

41,142

219

3,289

State

1,301,670

7,386

61,487

EMPLOYERS OFFERING DOMESTIC PARTNER BENEFITS

We found no complete list of Connecticut employers that offer domestic partner benefits. However, the Human Rights Campaign Foundation, a gay, lesbian, bisexual, and transgender advocacy group, identifies 133 Connecticut employers offering such benefits. Of these, 22 are governmental entities including the state, towns, and boards of education and 111 are private employers. We downloaded this information from the group's website (www.hrc.org/worknet) June 27, 2006.

According to the foundation, the overwhelming majority of employers nationwide that offer domestic partner health coverage offer it to both same-sex and opposite-sex partners. However, an employee should check with his employer for its specific eligibility criteria as not all employers define domestic partners in the same way. For example, the State of Connecticut's health benefit plan covers only same-sex domestic partners, based on a collective bargaining negotiation resolved by arbitration. A legal challenge brought by a state employee in an unmarried domestic relationship with a person of the opposite sex claiming sexual orientation and marital status discrimination was decided in favor of the state (Freidman v. Office of Comptroller, Ruling on Respondent's Motion to Dismiss, November 17, 2003; copy enclosed).

COURT DECISIONS

Cleaves v. City of Chicago

In Cleaves v. City of Chicago, a city employee claimed sex discrimination because a city ordinance extended employee benefits to same-sex domestic partners, but not to unmarried opposite-sex domestic partners, and thus denied him benefits because he was a man involved with a woman instead of a woman involved with another woman. The District Court for the Northern District of Illinois rejected Cleaves' argument. Instead, it said that the ordinance discriminated based on marital status, which is not protected under federal law, and dismissed the case (68 F. Supp. 2d 963 (N.D. Ill. 1999)).

In his law journal article, Lynd argues that the district court's reasoning was flawed. Lynd points out that the issue was between the treatment of unmarried same-sex couples and unmarried opposite-sex couples. As both couples are unmarried, they are similarly situated with respect to marital status, and so there is no marital status discrimination. Rather, the different result when applying the ordinance (i.e., benefits or no benefits) is based on a person's sex in relation to the person with whom he is in a domestic partnership.

Foray v. Bell Atlantic

In Foray v. Bell Atlantic, the employer included an employee's “same-sex domestic partner” in the definition of an “eligible dependant.” Employee Paul Foray requested to add his opposite-sex domestic partner to the benefits plan. Bell Atlantic denied his request saying an “opposite-sex domestic partner did not meet the eligibility criteria.” Foray filed suit alleging sex discrimination because “but for” his sex, he would have been able to add his domestic partner to the plan. The court dismissed his claim, finding that “a woman with a female domestic partner is differently situated from plaintiff in material respects because under current law, she, unlike plaintiff…will never be eligible for a host of benefits available to opposite-sex couples who are able to marry” (56 F. Supp. 2d 327 (S.D.N.Y. 1999)).

CALIFORNIA ADMINISTRATIVE DECISION

Ayyoub v. City of Oakland

California state law prohibits employment discrimination on the basis of sexual orientation and the City of Oakland operates a domestic partner registry system open to both same-sex and opposite-sex couples.

The city's health benefits policy extended coverage to “domestic partners and eligible dependents of gay and lesbian employees.” City employee Majid Ayyoub submitted a Declaration of Domestic Partnership for himself and his opposite-sex partner and applied for health benefits for her. The city denied the application because his “partner was not the same gender as he.” Ayyoub filed a discrimination complaint with the Labor Commissioner. He argued that the policy denied him a benefit available to other similarly-situated employees—unmarried employees in domestic partner relationships—solely because of his sexual orientation.

The commissioner held that the city's policy discriminated based on sexual orientation because it used an employee's actual or perceived sexual orientation as the eligibility criterion. Although the city thought it was creating a “level playing field” between couples legally able to marry and those who cannot, it instead created a new type of discrimination.

Ayyoub is an administrative labor case that, although not binding law, may be viewed as persuasive authority (No. 99-02937, Cal. State Labor Comm'r, Oct. 27, 1997).

ERISA and TITLE VII. Ayyoub is unique because the benefit policy at issue is for a governmental entity, which is not subject to ERISA and, therefore, the state law involved was not preempted. If the benefit plan were subject to ERISA, the result would have been different, as federal law does not recognize sexual orientation (or marital status) discrimination. As seen in the federal cases discussed, similar cases brought under Title VII have to prove sex discrimination to prevail. (Title VII prohibits an employer from discriminating “against any individual with respect to…compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. 2000e-2(a)(1))

DISCRIMINATION BASED ON ASSOCIATION

Attorney Paul R. Lynd argues that limiting domestic partner eligibility to same-sex couples violates Title VII based on a theory of discrimination against a person because of the sex of the domestic partner with whom he associates. In his article, Domestic Partner Benefits Limited to Same-Sex Couples: Sex Discrimination under Title VII, he explains that this “association” theory has been applied mostly with respect to claims of racial discrimination. For example, in Whitney v. Greater New York Corporation of Seventh Day Adventists, a white woman argued she suffered racial discrimination when she was fired because of her social relationship with a black man. The court upheld her claim, finding that her discharge due to her association with a black person fell within the statutory language “because of [her] race” (401 F. Supp. 1363 (S.D.N.Y. 1975)).

INSURERS OFFERING DOMESTIC PARTNER COVERAGE

According to the Connecticut Insurance Department, most insurance carriers file variable contract language that allows domestic partner coverage to be offered at an employer's discretion. As a result, the department does not know which carriers are in fact issuing policies with domestic partner coverage.

The San Francisco Human Rights Commission monitors domestic partner issues and identifies insurers writing health insurance policies in Connecticut that offer domestic partner coverage on its website: http://mission.sfgov.org/hrcdpip/CarrierDetail.aspx?cn=&st+CT&pr=Medical&pl=&gs=all. As of July 6, 2006, those insurers are Aetna, Anthem Blue Cross Blue Shield of Connecticut, Atlantis Health Plan, Careington International, CIGNA HealthCare, ConnectiCare, Guardian Life Insurance Company of America, Health New England, Healthcare Advantage, Oxford Health Plans, Sierra Health and Life Insurance Company, Unicare, and United Healthcare.

Each company listed defines “domestic partner” differently. Many require proof of partner status and joint financial responsibility. The site reports that each company except Healthcare Advantage includes in the definition of domestic partner both same-sex and opposite-sex partners. Healthcare Advantage reportedly only includes same-sex partners.

JLK:ts