Domestic Partner Benefits
In The Age of Marriage
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Employers all across Massachusetts offer
domestic partnership benefits to unmarried same-sex couples.
Those policies were instituted in the spirit of fairness in order to
provide “equal pay for equal work.” Even though the state may no longer
deny marriage to same-sex couples in Massachusetts, domestic
partnership benefits remain important. There is no reason to terminate
domestic partnership policies immediately and a number of good reasons
exist to maintain them for the foreseeable future. Without careful
thought, employers could inadvertently harm their employees’ families
and children.
Same-sex couples and heterosexual couples are not on a level
playing field with regard to marriage.
The right to marry is very helpful to many same-sex couples in
Massachusetts, but it is a mistake to think that it means all employees
are now in the same position. They are not. Same-sex couples who marry
still face discrimination and legal complications that non-gay married
employees don’t. There is no federal law disrespecting the marriages of
heterosexual couples (as there is with same-sex couples), let alone
state laws “voiding” the marriages of non-gay couples. The legal
complications and uneven respect for marriages of same-sex couples may
mean that the right choice for some people is to NOT marry.
Legal reasons why some same-sex couples might not be able to marry:
· Marrying a same-sex partner would mean an
automatic discharge from the military or reserves.
· A same-sex couple who marries cannot adopt a
child internationally.
· A bi-national same-sex couple cannot marry
for fear that the non-citizen partner would be exposed to U.S.
immigration officials and deported.
Heterosexual couples do not face these risks.
Marrying a same-sex partner could put an employee’s or his or her
partner’s ongoing job prospects in jeopardy.
It is still legal to discriminate based on sexual orientation in 36
states and there is no federal employment discrimination protection
based on sexual orientation. If an individual needs to change job
locations or transfer within a company, or even contemplates moving
from Massachusetts some day for new opportunities, being married to a
same-sex partner can “out” them as gay or lesbian, jeopardizing their
job and career path.
Legal uncertainty makes marriage unattractive to some same-sex
couples; employees should not be penalized for exercising caution.
A marriage is a marriage, but marriages of same-sex couples face
official discrimination in many areas, complicating their situation and
deterring some from marrying. For example, the federal government
denies all 1138 federal rights of marriage to same-sex couples. Some
couples may be unable to navigate the bizarre legal situation of being
married in Massachusetts but not in the eyes of the federal government.
Others might want to take a wait and see attitude, particularly in
light of attempts to change the Massachusetts state constitution and
strip marriage rights away from same-sex couples. In addition, many
states are on record saying they will not respect a marriage of a
same-sex couple. An employee may justly feel like these issues
need to be addressed before marriage will really protect his or her
family.
Insurance protection may not be portable from one job to the next,
leaving a family worse off due to the sacrifices or negative legal
consequences of marriage for same-sex couples.
Making health insurance for an employee’s family hinge on marriage
places undue pressure on the couple to marry. Some couples may think
the health insurance is worth the sacrifices described above, as part
and parcel of marriage for same-sex couples. However, the benefit of
the bargain could be stripped away if their next employer refuses to
extend health insurance or other benefits to same-sex married couples.
(Many management attorneys are advising self-insured employers to
revise their plans to purposely exclude married same-sex spouses.) This
would leave the employee’s family worse off, rather than better
protected.
Until
there is more respect for marriages of same-sex couples as marriages,
employers need to understand that marriage can be risky business for
same-sex couples.
Forcing same-sex couples to marry for
health insurance
may have unintended negative
consequences.
Based upon the mistaken belief that gays and lesbians can now marry on
the same terms as everyone else, some employers are terminating their
domestic partnership policies. In many cases, these policies provide
the sole mechanism for employees to obtain health insurance coverage
for their long-term partners.
PLEASE RECONSIDER. Forcing
employees to marry in order to get health insurance for their families
will put many employees in an untenable predicament. Any employer who
cares about providing “equal pay for equal work” and who does not want
to add to the discriminatory hardships faced by their employees should
continue to offer domestic partnership benefits.
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