Domestic Partnership Benefits: Why Not Offer Them to Same-Sex Partners and Unmarried Opposite Sex Partners?

Article excerpt

I. INTRODUCTION

Today, thirteen percent of all United States employers offer benefits to the domestic partners of their employees.(1) Larger companies, those with more than 5,000 employees, the figure is twenty-five percent.(2) Benefits offered to domestic partners often include both hard and soft benefits.(3) Hard benefits, which are commonly called "cost intensive benefits," may include medical, vision, and dental insurance along with pension or retirement benefits.(4) Other benefits are referred to as soft benefits and may include bereavement leave, legal services, employee discounts, health and fitness programs, relocation policies, and child care.(5)

The number of companies offering such benefits has increased dramatically in this decade. Over the past three or four years, the number of public and private employers offering domestic partner benefits has increased from about 200 to over 600 in 1997.(6) Some of the reasons cited by employers for offering such benefits include employee recruitment and retention, and the employer's own nondiscrimination policy.(7)

However, not every employer offering such benefits include both heterosexual and homosexual partners in their policy(8) mainly because they believe heterosexuals can legally marry, whereas, homosexuals cannot.(9) Domestic partner benefits can be defined in either narrow or broad terms.(10) In the broad definition, employment benefits are given to all individuals regardless of their marital status or sexual orientation.(11) On the other hand, the narrow definition extends benefits only to homosexuals and their partners who are legally prohibited from getting married.(12) Of the companies that offer benefits for unmarried employees' partners, about half exclude heterosexual couples.(13)

Employers offering these benefits to same-sex domestic partners only, may face legal challenges such as marital status and sexual orientation discrimination or equal protection arguments(14) from their unmarried heterosexual employees. In addition, states and municipalities have been increasing the potential of such litigation by passing laws that prohibit discrimination based on sexual orientation and marital status especially in the areas of housing and employment.(15)

This Note examines the potential of such legal challenges when employers use the narrow definition in structuring their domestic partner benefit programs. In addition, avoiding challenges by simply not offering benefits will be discussed. However, before discussing any discrimination issues, this Note will begin with some background and definitions that will bring the reader up-to-date on domestic partner benefits as they are interpreted today.

II. DOMESTIC PARTNERSHIP DEFINED

A. Background: The Changing Definition of Family

Since 1970, the number of cohabitating Americans increased by more than 400 percent.(16) Nearly three million of the 93 million households in the United States consist of unmarried couples.(17) Single-parent households make up an additional fifteen percent of families. Many of these single-parents have unmarried partners.(18) As these statistics show, the traditional family--a working dad, stay-at-home mom, two kids and a dog--is near extinction.(19) In fact, census data demonstrates fewer than ten percent of current households consist of this so-called traditional family.(20)

The concept of family has largely been founded on the existence of marriage, but the legal definition of family has become quite unsettled.(21) Depending upon the purpose, courts and legislatures have defined family differently.(22) However, the U.S. Census Bureau has remained somewhat with the traditional concept of family by defining it as "two or more persons related by birth, marriage or adoption who reside in the same household."(23)

More and more Americans today are expanding this concept of family by thinking of family as people to whom they have some emotional tie as opposed to merely a bloodline relationship. …