Fact Sheet: Henson v. University of Pittsburgh

Q. What is this case about?

A. The University of Pittsburgh denies their lesbian and gay employees equal compensation by refusing to provide their partners the same health insurance benefits that they provide to spouses of heterosexual employees. Insurance benefits constitute a significant portion of employees’ compensation. Because lesbian and gay employees of the University are denied health benefits for their partners, they are receiving substantially less compensation for the same work being performed by their heterosexual counterparts.

Q. Who are the complainants?

A. The complaint was filed on behalf of Deborah M. Henson, a former legal writing instructor at the University of Pittsburgh School of Law. Ms. Henson requested health insurance for her same-sex domestic partner of nearly a decade, but the University denied her request. Two other University employees — one faculty member and one staff employee — subsequently joined the action.

Q. What law is the University of Pittsburgh violating by its failure to provide health benefits to its employees’ same-sex domestic partners?

A. This case was brought under the Pittsburgh Human Relations Act, which prohibits discrimination in employment, including discrimination in compensation, on the basis of sexual orientation.

The University violated the Act by establishing an eligibility requirement for partner health benefits that lesbian and gay employees and their partners cannot meet — marriage. The University’s health benefits scheme discriminates on the basis of sexual orientation as it has a clear disparate impact on lesbian and gay employees. A disparate impact exists when one group is affected more harshly than others by a policy.

Q. But same-sex marriage is not legal in Pennsylvania. Isn’t the University just following the law?

A. No. This case is not about the legitimacy of Pennsylvania’s marriage law, and Ms. Henson’s complaint does not challenge the state marriage law. The fact that the state legislature has not legalized marriage for lesbian and gay couples does not mean that lesbian and gay employees must be discriminated against in their compensation.

Q. Is it true, as the University claims, that cities in Pennsylvania cannot pass laws that protect lesbian and gay employees from discrimination?

A. Neither the State Constitution nor any State statute prohibits cities from enacting laws to protect lesbians and gay men from discrimination. The University’s claim that cities lack such authority is a serious attack on the rights of lesbians and gay men in Pennsylvania, and the legislative sovereignty of Pennsylvania’s cities. In Pennsylvania, at least seven cities plus Northhampton County currently have laws prohibiting discrimination based on sexual orientation.

Q. Does any state or federal law require the University to make marriage the sole determinant of partner eligibility for health benefits?

A. No. The University chooses how to design its health benefits program. It is free to offer benefits to employees’ same-sex domestic partners just like other Pennsylvania employers, including universities and colleges, have done.

Q. What criteria could the University choose besides marriage for providing benefits to employee families?

A. The University could, for example, maintain marriage as a basis for eligibility and have, as alternative criteria, domestic partner registration and/or an affidavit of domestic partnership. These criteria are commonly used by employers.

Q. Does the University provide any benefits to employees’ same-sex partners?

A. Yes. It currently provides bereavement leave, limited tuition remission and the use of university facilities such as the gym and library.

In fact, the University has an “affidavit of domestic partnership” form and a domestic partner registry that it uses for purposes of determining eligibility for these benefits. The same form and registry could be used for health benefits.

Q. Will insurance carriers provide coverage for employees’ same-sex domestic partners?

A. The Pennsylvania Insurance Commissioner allows for the provision of health benefits to domestic partners. Other health benefits plans that include domestic partner coverage, including the University of Pennsylvania’s plan, are covered by the employers’ insurance carriers.

Q. Do any employers in Pennsylvania provide health benefits to their employees’ same-sex domestic partners?

A. Yes. They include the Bell Atlantic, Pew Charitable Trusts, University of Pennsylvania, Dickinson College, Swarthmore College, American Friends Service Committee, SmithKline Beecham Corporation, and WQED-FM Radio in Pittsburgh.

Q. How does this case affect employees’ unmarried heterosexual partners?

A. Benefits for unmarried heterosexual couples are not at issue in this case because no unmarried heterosexual employees have filed a complaint. The University’s policy and practice is being challenged for the way it affects lesbian and gay employees.

The denial of domestic partner benefits is particularly harmful to same-sex couples who, unlike heterosexual partners, do not have the option of marrying. Moreover, Pennsylvania is a common-law marriage state, which means that an opposite-sex couple is deemed legally married, even without having a marriage ceremony, if the parties simply verbally agree to enter into a marital relationship.

Q. Wouldn’t it be unfairly expensive for the University to have to pay for these health benefits?

A. No. The experience of employers that provide domestic partner health benefits is that the cost is minimal, usually amounting to an increase in health-care spending of less than just 1%.

The University’s projections estimated that the cost of providing health benefits for “same-sex” couples would be $50,000 compared to their then-current payment for spousal benefits of $2,860,320. But this figure was misleading because it was based on census data for both same-sex and opposite-sex unmarried couples. Interestingly, a lower figure of no more than $25,000 for same-sex couples was circulated at one point by a human resources official to the staff and faculty.

It is quite possible that the University, in fact, could end up spending more to defend its refusal to provide equal benefits than it would to provide them. In any case, the fact that it will cost the University money to provide equal health benefits to lesbian and gay employees does not justify its discriminatory compensation scheme, just as it would not justify denying health insurance to partners of Asian employees, for example.

Q. If the cost is so small, why is the University refusing to provide equal health benefits tor lesbian and gay employees?

A. This is one question our lawsuit seeks to address. According to local news reports, some University trustees have expressed hostility towards lesbians and gay men as well as concern that the provision of same-sex domestic partner benefits would harm University fundraising efforts. One Board member reportedly voted against extending even the bereavement leave, tuition remission and facility privileges because it would be “a special reward for being homosexual, and I’m totally against it.”

Q. Is the University community in favor of providing equal health benefits to the partners of lesbians and gay employees?

A. Yes. Generally speaking, the University community has supported the provision of equal benefits to lesbian and gay employees. The University faculty Subcommittee on Health Insurance Benefits for Same-Sex Partners issued a report in November of 1994, concluding that the University should immediately extend health benefits to domestic partners and that the continued failure to do so would run afoul of the University’s own anti-discrimination policy.

Q. Where does this case now stand?

A. Deborah Henson’s lawsuit was filed in January of 1996. In April of 1996, after examining the initial evidence that it collected, the Pittsburgh Commission ruled that there was “probable cause” to believe that the University had engaged in illegal discrimination based on sexual orientation. Right now, the Commission is reviewing an effort by the University to dismiss the case.