President Street and other members of the Rules Comittee:
My name is Larry Gross and I am Co-Chair of the Philadelphia Lesbian and Gay Task Force. I am joined by Rita Addessa, Executive Director of the Task Force. I am also representing the Lesbian and Gay Faculty and Staff Association of the University of Pennsylvania -- a group that has been working towards the achievement of domestic partner benefits at the city's largest private employer.
Thank you for the opportunity to speak in favor of these long-overdue measures that would correct a fundamental inequity in the current employee benefits system.
The first of the proposed bills would prohibit discrimination on the basis of marital status in the area of employment (housing and public accommodations are already covered by the Fair Practices Act). We feel that this is measure is long overdue and we urge passage of Bill 388.
The other two bills both provide benefits for domestic partners of City employees (and of firms contracting business with the City); one (#531) including only lesbian and gay domestic partners and the second (#552) covering opposite sex domestic partners as well. While we favor the more inclusive of the two proposed bills, we support both bills because even the narrowed bill would redress the most egregious discrimination in the current benefits system -- that faced by lesbian and gay people.
The core case for extending benefits to domestic partners and their children rests on the City's express policy barring discrimination in employment on the basis of sexual orientation (or, should Bill 388 pass, marital status). Were employers to pay a different cash salary to employees based on their sexual orientation, it would clearly violate current nondiscrimination policy. The effect of the current benefits program is on its face identical. Employee benefits are a form of compensation, currently representing a significant percentage (roughly 30 percent) of total compensation. By providing benefits to married employees that are not available to unmarried employees living in domestic partnerships that are the functional equivalents of marriage, the City therefore discriminates in compensation on the basis of sexual orientation and/or marital status.
In evaluating the nondiscrimination claim, we follow the conventional philosophical interpretation given to the principle of nondiscrimination. Under that view, the City is not barred from making any distinctions between married and unmarried, or heterosexual and gay or lesbian, employees. Rather, it must show that any distinction it does make between the groups has a strong justification that overrides the presumption of equal treatment. We considered a number of grounds that are frequently suggested, or might be suggested, for differentiating between traditional families and domestic partnerships in setting the benefits portion of compensation. They include the claims that (1) the City must offer benefits to traditional families in order to remain competitive with other employers, but need not offer them to domestic partners; (2) traditional families have greater financial needs that family benefits are intended to alleviate; (3) the City ought not to endorse domestic partnerships by treating them as the moral equivalent of marriage; and (4) the costs of extending coverage to domestic partners would be prohibitive.
We conclude that the first two arguments do not justify differentiating between domestic partnerships and marriages. As to (1), we believe the optimal competitive strategy for the City (and other employers) is at best indeterminate. More importantly, we believe it would violate important norms of fairness, reflected in the City's Fair Practices Act, to discriminate against unmarried employees simply because competitive forces make it economically efficient to do so. As to (2), we believe that need-based considerations explain at least partly the most costly family benefit ---subsidized family health coverage. If family benefits were extended to domestic partnerships under either of the proposed bills, "domestic partnerships" would be defined to reach those relationships that are the functional equivalents of marriage---long-term, intimate, committed relationships, in which as a practical (and in some cases legal) matter the partners assume financial responsibility for each other, akin to the responsibility that is practically and legally imposed by marriage. Given that fact, we see no reason for assuming that the financial needs of an employee in a domestic partnership would differ from those in a traditional marriage.
Thus, we believe that the case for domestic partner benefits ultimately turns on the last two issues: whether the City should treat domestic partnerships as the moral equivalent of marriage, and how it should weigh cost considerations.
We believe there is a strong claim on behalf of gay men and lesbians to have their long-term, committed relationships treated with the same respect as marriage for purposes of employee benefits. While we think the case to be made on behalf of heterosexual domestic partners in long-term, committed relationships is somewhat weaker, we think it is also persuasive. We base these conclusions on a number of considerations.
First, we believe the City has already implicitly committed itself to treat domestic partnerships as equivalent to marriage for these purposes in the Fair Practices Act. While that Act as currently written has no legal force in determining benefits policy, we believe it has significant moral force. If we conclude otherwise, we are in effect stating that while unmarried heterosexual, gay and lesbian employees are entitled to equal treatment and respect with married employees, the intimate, long-term committed relationships they form are not. At least in the case of gay and lesbian employees -- for whom such relationships are the core fact of group identity -- we do not think that is a morally persuasive reading of the City's nondiscrimination policy. In the case of heterosexual partners, who have the legal option to marry, the question is more complicated. We believe the argument for covering heterosexual domestic partnerships notwithstanding the availability of marriage is that for some heterosexual partners, the choice not to marry reflects a political or ideological opposition to marriage, not merely the absence of commitment. The argument that the City ought not to penalize such political or ideological convictions is reasonably powerful. But we believe the argument that it ought not to penalize the long-term relationships of those (gay and lesbian) who do not have the option to marry at all is more compelling.
Second, we think that redefining "family" for purposes of the benefits program to include long-term, committed domestic partnerships appropriately reflects the changing social reality and recognizes the diverse values of a pluralistic society.
In the past decade a growing number of municipalities and private employers around the country have recognized this important principle and have adopted domestic partnership programs including employee benefits. In the private sector such major corporations as American Express, Disney, Levi Strauss, and Microsoft provide domestic partnership benefits. Universities are among the most progressive employers in this area, with some of the nations most eminent leading the way. In the Delaware Valley the University of Pennsylvania – the city’s largest public employer – has been offering domestic partner benefits since 1994, as do Swarthmore and Byn Mawr Colleges.
Cost considerations. Finally, some may agree in principle that the City ought to extend family benefits to domestic partners, but be reluctant to incur the costs that entails. We are aware that such practical considerations cannot be ignored. However, they must inevitably be weighed against the moral arguments for extending coverage. Further, based on the experience of other municipalities and private employers, it is quite clear that out-of-pocket costs will be relatively small, given the overall benefits budget.
The principle here is ultimately very simple: equal pay for equal work.