Justice at Work

FROM OF COUNSEL VOL 6, NO. 2
(APRIL 2010)

Karen Golinski is a Ninth Circuit Court of Appeals employee who has been denied health benefits for her same-sex spouse—even though the coverage would not cost the federal government one additional cent in premiums.

Gilbert Caldwell is a SkyWest airlines employee who was told that spousal travel benefits were off-limits to him, despite his lawful marriage to his life partner of over 35 years.

Ten Arizona state employees have sued to block the state from eliminating partner health benefits for lesbian and gay employees. Without coverage, their partners face potentially devastating health consequences.

The stories are different but the battle is the same: equal treatment in the workplace.

These are age-old fights for same-sex couples, and Lambda Legal. Workplace discrimination has been a primary reason that people have called our Legal Help Desk for many years. Marriage and other relationship statuses are available to more same-sex couples today than ever before, giving lesbians and gay men additional reasons to demand equal treatment in the workplace. Disappointingly, some employers are woefully behind the times, and as more lesbian, gay and bisexual employees ask for equal respect from their employers we are defending their rights in increasing numbers.

Our work for Karen Golinski is one example of the familiar fight for workplace equality based on a new chapter of relationship recognition in California, and against the unlikeliest of foes – the current presidential administration.

Karen and her life partner of twenty years, Amy Cunninghis, married in California in 2008. After working for the Ninth Circuit Court of Appeals as a judicial attorney for seventeen years, and with new legal force supporting her relationship after her marriage, Karen renewed a prior request for family health benefits.

When Karen's request was denied, Lambda Legal and pro bono counsel at Morrison & Foerster LLP assisted her with her internal administrative grievance, as required by the court's personnel policies. Hearing the case in his role as Chief Judge of the Ninth Circuit, Judge Alex Kozinski agreed that Karen is entitled to equal compensation in the form of family benefits for Amy, and that the so-called federal "Defense of Marriage Act" poses no barrier. The U.S. Office of Personnel Management ("OPM") then interfered, however, directing Karen's insurer to defy Judge Kozinski's orders and not enroll Amy in Karen's family health plan.

Karen's case started during the Bush administration, but we found ourselves facing a surprising adversary after the election. President Obama's administration has continued aggressively to defy Kozinski's orders, while also refusing to offer its legal arguments in court. Repeated conversations with administration attorneys and representatives have yielded no progress, leaving us to wonder – where is the "fierce advocate" for LGBT rights that President Obama promised us? The administration made its case during the health care debate about the need to have more people in group health plans—the very solution it so vigorously denies Karen.

After OPM flouted no fewer than four court orders from Judge Kozinski, we were forced to initiate an enforcement case in federal court. It was a disappointing irony when we had to name as a defendant OPM Director John Berry, believed by many to be the highest ranking openly gay person in the administration. Karen's case is now pending in the District Court for the Northern District of California, where we're seeking an order requiring OPM to stop interfering with the court's personnel practices in violation of the constitutional "separation of powers" doctrine and other rules.

As Judge Kozinski recognized when ordering back pay for Karen as partial compensation for the insurance coverage she's been denied so far, there is an "inherent inequality" in allowing heterosexuals to participate in the employee health plan while giving lesbians and gay men like Karen "a wad of cash to go elsewhere. Even if the destination is the same, it's still the back of the bus."

We're already building on this progress, since many of these principles play a central role in our federal case in Arizona, Collins v. Brewer. Lambda Legal represents almost a dozen state employees whose families face perilous financial and health consequences if partner health benefits are cut off, as a new law threatens to do. Despite years of service to the state, our plaintiffs first received access to partner health coverage only in 2008, which helped lift an enormous burden of anxiety and financial stress from their families.

Gay and lesbian state employees had the rug pulled out from under them, however, when Governor Janice K. Brewer approved legislation in September 2009 that eliminates these benefits. If this new law is allowed to take effect, health benefits for a state employee's same-sex partner and partner's children will end on October 1, 2010.

Our lawsuit seeks to block enforcement of the law as a violation of lesbian and gay state employees' federal equal protection and substantive due process rights. We argue that equal protection requires equal pay for equal work – lesbian and gay employees haven't had their job responsibilities reduced because of their sexual orientation, and their compensation shouldn't be reduced either.

Our substantive due process arguments build on Lambda Legal's 2003 U.S. Supreme Court victory in Lawrence v. Texas, which recognized the right of same-sex couples to form intimate family relationships free from government interference. The state's decision to privilege heterosexual employees who form such relationships with a different-sex partner, while disfavoring gay employees who do so with a same-sex partner – by withholding equal health coverage from them – impermissibly burdens the right identified in Lawrence.

Defendants are arguing that cost-savings and administrative efficiency justify the unequal policy – it's simply cheaper to discriminate against gay people – though the U.S. Supreme Court has rejected that argument for decades in other contexts. Defendants also claim that the law may be justified because the funds purportedly are "better spent" on heterosexuals who choose to marry than gay people, because heterosexuals are "more likely" to have children, and restricting access to health insurance somehow will "favor marriage." A belief that funds are better spent on one group of employees than another, and a mere desire to favor those employees, imposes the sort of moral judgment about gay people that offends equal protection guarantees. Denying benefits to same-sex couples won't induce heterosexuals to marry each other, and attempting to coerce gay people into heterosexual marriages certainly won't advance any of society's supposed interests in the institution of marriage. For example, to the extent the defendants seek to further the interests of children, who do better when both they and their parents have access to health care, the new law is completely unrelated to that purpose. Heterosexuals' children are not helped by denying insurance to lesbian and gay parents and their children, who are no less worthy of the same coverage and resulting peace-of-mind.

The two examples above represent a significant part of our docket – hard-fought cases that likely will not be resolved short of a formal court decision. For many of other clients, however, we can secure a good resolution after negotiating for fair treatment. Often this is a sign of the progress we've made – when a discriminatory policy is brought to their attention, many employers recognize the importance of treating LGBT employees equally – even if firm prompting is required first.

Such was the case with Gilbert Caldwell's employer, SkyWest airlines. Gilbert came to us after he had been denied equal travel benefits for his life partner and spouse, Reverend David Farrell, because SkyWest refused to recognize either his state-registered domestic partnership or California marriage. Gilbert instead could only fly with Rev. Farrell on SkyWest-operated Delta Connection flights and Delta Air Lines flights through a "companion" program designed for "friends."

Representing Gilbert came within a long chapter of work we've done to establish and defend California domestic partners' right to equal treatment, while also marking a new phase of advocacy – defending the marriages that Lambda Legal helped make possible in California. Knowing there would be ongoing confusion about the status of same-sex couples' marriages entered before Proposition 8 passed, we launched a project called "Marriage Watch: California" to ensure that married same-sex couples are properly respected, and not subjected to the insult and indignity that Gilbert and David endured for many months.

After we briefed California law in detail for SkyWest and Delta in November of 2009, with firm follow-up advocacy on Gilbert's behalf, SkyWest and Delta implemented a new policy by March of 2010, allowing employees' same-sex domestic partners and spouses to travel on the same terms as heterosexual spouses.

For each of the clients we represent, there are countless others facing similar inequalities, but who may not be in a position to step forward publicly to seek redress for the unfair treatment. Such was the case in Arizona, where we spoke with dozens upon dozens of states workers affected by the new law, though many understandably felt too vulnerable to homophobia and other pressures to participate in the case. Karen Golinski and Gilbert Caldwell, too, stand in for many others whose relationships have not been treated with the respect they deserve. They are doing something difficult and courageous – facing down their employers or others about unequal treatment on jobs they value and are proud to perform. For our clients, and all the other people they represent, Lambda Legal will continue pursuing these challenges to make sure that the workplace is fairer for everyone.