Even after employers decide to offer full DP benefits, they are often faced with additional obstacles when administering the benefits. Soft benefits are easily extended to domestic partners since the regulation of sick leave and the use of employer facilities fall completely under the purview of the employer.

Hard benefits, however, require employers to closely examine their benefits administration as well as the process whereby it can be changed. Larger companies with self-funded insurance plans can fairly easily add recipients however they choose. Employers that are not self-funded generally contract their policies through insurance providers and must negotiate the specific addition of DP coverage with the insurance company.

This listing presents those insurance companies which have, in some instances in certain regions of the country, included domestic partners in their policies. Even if not listed, your insurance provider may be willing to include domestic partners in their coverage if persuaded or asked to do so:

AETNA
Ameritas
Blue Cross/Blue Shield
CIGNA
Consumers United
Great West
Harvard Community Health Plan
Kaiser Permanente
Mass Mutual
NY Life
PacifiCare
Prudential
U.S. Healthcare
Vision Service Plan

In certain regions of the country, state regulations limit the extent or circumstances under which employers can provide DP cove rage. These regulations generally apply to certain types of cove rage (i.e., small group coverage, for under 50 people) or types of policy (i.e., HMOs may be excluded). These regulations are most stringent in Georgia and Virginia, where the state has prohibited any insurance provider within the regions from covering domestic partners. Virginia employers have the option of contracting with out-of-state providers; Georgia employers do not. Information on insurance regulations in these states and others can be obtained by contacting the state insurance commission.

Rarely are these regulations written in stone, however. They are subject to change through reinterpretations of existing code language to allow for the inclusion of domestic partners (rather than implying their exclusion). This is yet another realm in which citizen activism can bring about change.

In situations where the insurance provider does not cover DP benefits, employers may provide employees with funds to cover the cost of individual insurance policies for domestic partners and their children. In still other, less desirable situations, companies allow partners to join a group plan but ask the employee to make the co-payment.

Benefits Taxation —————

A significant tax burden exists on employees who participate in DP benefits plans. For the most part, health care and other benefits extended to the spouse and/or children of an employee are exempt from taxes. However, the same contributions made to any other individual — including registered domestic partners and dependents of domestic partners — are not exempt from taxes, unless those receiving benefits meet the definition of “dependent” under the Internal Revenue Code (IRC).

IRC Section 152 defines a “dependent” as one who:

1. receives half of his/her support from the taxpayer and
2. is a member of the taxpayer’s residence, which is the dependent’s principle place of residence.

All benefits extended to a tax payer’s non-dependent, non-spousal family members are, therefore, taxable.

While the policy regarding the taxability of domestic partnership benefits is not explicitly stated in the IRC, several private letter rulings from the Internal Revenue Service (IRS) have affirmed this interpretation of the code (see PLR 971708, PLR 9603011, PLR 9431017, PLR 9231062, PLR 9109060, PLR 9034048).

In order to compute the income attributable to domestic partner coverage, the organization Hollywood Supports suggests the following formula (in a two-tier benefits structure):

This formula suggests that the standard cost for single coverage be subtracted from the cost for domestic partner-inclusive family coverage. The employer contribution for single coverage should also be subtracted, resulting in a final total of imputed income. This formula could easily be modified for a three (or more) tier structure, although specific types of benefits policies, such as cafeteria plans or pension plans, may have altogether different tax ramifications.

Employees should contact a tax professional to fully understand the financial implications of electing DP cove rage. In extending DP benefits, employers may wish to create an informational sheet that explains how DP benefits taxation will apply to the company’s specific benefits option(s). Because of these tax laws, DP benefits are still unequal to spousal benefits since they cost the employee more. Here too, though, the employer can advance the cause of fairness by “grossing up” the benefits compensation to cover the amount taxed. While this option makes DP benefits more costly, it also makes the benefits more accessible to employees.

The National Gay and Lesbian Task Force is not authorized to issue tax or legal advice. This summary of information is intended as an informational primer only. Please consult an accountant and/or attorney for additional information.

The following is a summary of some of the leading appellate decisions affecting the rights of domestic partners. Some involve same-sex couples while the litigants in others involved unmarried opposite-sex relationships. The list is not intended to be comprehensive as it does not include, for example, decisions of state courts invalidating sodomy laws or state cases involving child custody, visitation, or adoption.

Federal Cases —————

United States Supreme Court

Bowers v. Hardwick, 478 U.S. 186 (1986)
States, such as Georgia, have authority to enact criminal laws prohibiting consenting adults from committing sodomy in private, and such laws do not violate the federal constitutional right of privacy.

United States Court of Appeal

Markman v. Colonial Mortgage Co. (D.C. Cir. 1979)
The federal fair lending act which includes marital status discrimination prohibits a lender from treating an unmarried couple differently than a married couple for purposes of joint credit.

Rovira v. AT&T, 817 F.Supp. 1062 (S.D. N.Y. 1993)
A private employer’s refusal to provide death benefits to the unmarried partner of an employee does not violate any federal law, and state nondiscrimination laws may not attempt to regulate benefits governed by federal ERISA law.

State Appellate Cases —————

Alaska Supreme Court

Swanner v. Anchorage Equal Rights Commission, 874 P.2d 274 (Alaska 1994)
A local housing law prohibiting marital status discrimination provides protection to unmarried couples, and the religious freedom clauses of state and federal constitutions do not give the right to a landlord to discriminate merely because landlord believes that unmarried cohabitation is a sin.

University of Alaska v. Tumeo, 933 P.2d 1147 (Alaska 1997)
The refusal of the university to provide health and other job benefits to domestic partners of its employees was illegal marital status discrimination in violation of the state’s civil rights act.

California Supreme Court

City of Santa Barbara v. Adamson, 610 P.2d 436 (Cal. 1980)
A city ordinance restricting the number of unrelated adults who may live together in a residential area zoned for single families violated the right of privacy in the state constitution which protects the right of “alternate” families to live together.

Marvin v. Marvin, 557 P.2d 106 (Cal. 1976)
It is not against public policy for courts to enforce cohabitation agreements made by unmarried couples pertaining to the distribution of their property when the relationship terminates, so long as sexual services are not the primary consideration for the agreement.

Elden v. Sheldon, 758 P.2d 582 (Cal. 1988)
An unmarried cohabitant who witnesses the death of her partner in an automobile accident may not sue the wrongdoer for emotional distress, although she could do so if she and her partner had been legally married.

Smith v. Fair Employment and Housing Commission, 913 P.2d 909 (Cal. 1996)
A state housing statute prohibiting marital status discrimination provides protection to unmarried couples, and neither the religious freedom clauses of state and federal constitutions, nor the religious freedom restoration act, gives the right to a landlord to discriminate merely because landlord believes that unmarried cohabitation is a sin.

California Court of Appeal

Hinman v. Department of Personnel Administration, 213 Cal.Rptr. 410 (1985)
The state’s refusal to provide dental benefits to the family partner of a state employee was not illegal discrimination on the basis of sexual orientation or marital status, nor did it violate the equal protection clause of the constitution.

Dept. of Industrial Rel. v. Worker’s Comp. Bd., 156 Cal.Rptr. 183 (Cal. App. 1979)
An unmarried cohabitant who lived with and was partially dependent on an employee may recover worker’s compensation survivor benefits when the employee dies from a work-related injury.

Colorado Court of Appeal

Ross v. Denver Dept. of Health, 883 P.2d 516 (Co. App. 1994)
The refusal of the city to provide sick leave benefits to an employee who wanted to care for her same-sex domestic partner did not constitute sexual orientation discrimination, nor did it violate the equal protection clause of the constitution.

Georgia Supreme Court

City of Atlanta v. McKinney, 454 S.E.2d 517 (Ga. 1995)
The City of Atlanta had authority to create a local public registry for domestic partners.

Morgan v. City of Atlanta, __ S.E.2d __, 1997 WL 677314 (Ga. 1997)
The City of Atlanta had authority to provide health and other benefits to the domestic partners of city employees, so long as the domestic partner is at least partially dependent on the employee.

Illinois Supreme Court

Hewitt v. Hewitt, 394 N.E.2d 1204 (Ill. 1979)
Illinois courts will not enforce cohabitation agreements made by unmarried couples because to do so would violate a state public policy promoting marriage.

Louisiana Supreme Court

Henderson v. Travelers Ins. Co., 354 So.2d 1031 (La. 1978)
An unmarried cohabitant who lived with and was partially dependent on an employee may recover worker’s compensation survivor benefits when the employee dies from a work-related injury.

Massachusetts Supreme Court

Reep v. Commissioner, 593 N.E.2d 1297 (Mass. 1992)
An unmarried cohabitant is entitled to unemployment benefits when she quits her job in order to move to another area with an unmarried partner who was relocating his business.

Minnesota Supreme Court

State by Cooper v. French, 460 N.W.2d 2 (Minn. 1990)
Unmarried couples are not protected from housing discrimination even though state law forbids “marital status” discrimination. Since another state law criminalizes unmarried cohabitation, the legislature could not have intended to protect unmarried couples from discrimination while at the same time criminalizing their cohabitation.

Minnesota Court of Appeal

Lilly v. City of Minneapolis, 527 N.W.2d 107 (Minn. 1995)
The City of Minneapolis lacked authority to grant job benefits to the same-sex domestic partners of city employees, since state law authorizing cities to give job benefits defines “dependent” in a narrow manner which is limited to children and legal spouses.

New Jersey Supreme Court

Dunphy v. Gregor, 642 A.2d 372 (N.J. 1994)
A person who witnesses the death of his or her unmarried partner may sue the wrongdoer for emotional distress so long as the couple was living together in a “familial relationship” even though they were not married to each other.

New Jersey Superior Court, Appellate Division

Rutgers Council of AAUP v. Rutgers University, 689 A.2d 828 (N.J. Super.A.D. 1997)
The university’s refusal to extend job benefits to same-sex domestic partners of its employees did not constitute illegal discrimination on the basis of sexual orientation or marital status and was not unconstitutional.

New York Court of Appeals

Braschi v. Stahl Associates, 543 N.E.2d 49 (N.Y. 1989)
When the term “family” is used in a statute without definition, the term may include persons who are living together as a family unit even though they are not related by blood, marriage, or adoption.

Baer v. Town of Brookhaven, 537 N.E.2d 619 (N.Y. 1989)
A town ordinance prohibiting unrelated adults from living together in a residential area zoned for single-family use violated the due process clause of the state constitution.

Morone v. Morone, 413 N.E.2d 1154 (N.Y. 1980)
New York courts will enforce cohabitation agreements made by unmarried couples so long as the agreement is either in writing or is an explicit verbal agreement between the parties.

New York Supreme Court, Appellate Division

Gay Teachers Assn. v. Board of Education, 585 N.Y.S.2d 1016 (N.Y. Supr. Ct. 1992)
Teachers’ complaint stated a cause for discrimination due to the employer’s refusal to provide job benefits to the domestic partners of teachers.

Ohio Court of Appeals

State v. Hadinger, 573 N.E. 2d 1191 (Ohio Ct. App. 1991)
The court rules that a domestic violence statute which applies to “persons living as a spouse” applies to two persons of the same sex who are cohabitating or have cohabitated within the past year.

Oregon Court of Appeals

Tanner v. Oregon Health Sciences University, __ P.2d __, 1998 WL 869976 (Or. Ct. App. Dec. 9, 1998)
The court rules that extending important employment benefits like health coverage only to married state employees is unfair to workers who cannot legally marry, and violates the Oregon Constitution’s “equal privileges and immunities” clause. The court also ruled that the state law which bars discrimination on the basis of sex also prohibits sexual orientation discrimination.

Virginia Supreme Court

Cord v. Gibb, 254 S.E.2d 71 (Va. 1979)
The state could not deny a lawyer a license to practice law merely because she was living with a person of the opposite sex out of wedlock.

Wisconsin Supreme Court

County of Dane v. Norman, 497 N.W.2d 714 (Wisc. 1993)
A county ordinance which purported to protect unmarried couples from housing discrimination was invalid because it conflicted with the public policy of the state to promote marriage.

Wisconsin Court of Appeal

Phillips v. Wisconsin Personnel Commission, 482 N.W.2d 121 (Wisc. App. 1992)
The state’s denial of health insurance cove rage to the domestic partner of a state employee did not constitute illegal discrimination on the basis of sex, sexual orientation, or marital status and was not unconstitutional.