By Manuella W. Hancock
Almost every employer compensates employees in a variety of ways that go beyond the paycheck. These employee benefits are sometimes required by law, or strongly encouraged by industry or locality standard, and the package can be an important recruiting and retention tool.
Unfortunately, a significant number of these benefits are a source of passive discrimination against LGBT employees. In particular, benefits intended for the family of an employee do not always recognize LGBT families. In these instances, the benefit is either not available or is an added expense that heterosexual employees are not required to pay.
There are some aspects of this problem that can be fixed. In order to maximize your employee benefits, protect your family and work towards complete workplace equality, there are some good steps to take.
Understand the full benefits package. Do your homework. If you don’t already know your benefits, find out what they are. The human resources person or department should be able to give you a list, as well as any documentation explaining your benefits. The employee handbook is also a good resource. It will usually explain benefits like sick days and whether you are entitled to leave to tend to your family. You should check to see if these documents contain limitations that may prevent you from getting benefits for your family or using benefits like leave to take care of your family. If you are not out at work, this research won’t raise any red flags, but may help you to protect your family.
Understand your local laws. Federal, state and local regulations address employee benefits. Take some time to go to the government websites to see what benefits are required by law. For example, paid sick leave is not required by federal law, but the District of Columbia requires employers to provide paid sick leave, which also can be used to care for a spouse, domestic partner, parent or child. Maryland also requires paid sick leave; but without domestic partnership rights, and the present lack of marriage equality, a Maryland employee would not be entitled to paid sick leave to care for his or her same-sex partner. (The recent decision of Port v. Cowan may mean that couples married in a jurisdiction that recognizes same-sex marriage may be eligible for this benefit, but this issue has not been tested). Virginia provides for paid sick leave for public employees, but no law requires paid sick leave for private employees. And public employees can only take leave for an opposite-sex spouse or for a family member related by blood or law.
Get to know your industry. If your employer does not offer a benefit, look into what is the standard for your industry. If you can present your employer with information showing that competitors are extending a benefit to same-sex partners regardless of the legal requirement, you will be making a compelling economic argument for your employer to do the same.
If no other employer offers a benefit, you may convince your employer to take the lead as a recruiting technique. In the 1980s, no employers offered health insurance to same-sex partners and no insurance companies offered the option. Apple and other corporations began to offer this benefit to recruit and retain employees. If you do the work for your employer—find out about the cost to extend the benefit to same-sex partners of employees—you may be able to obtain what you are looking for.
Look for the work-around. Even though the surface of an employee benefit discriminates against LGBT employees, don’t give up entirely. Some benefits, like disability insurance or retirement benefits, can have any beneficiary an employee designates. Making sure these beneficiary designations are made and updated when appropriate will assure that the person you choose receives this benefit.
Manuella W. Hancock, JD, LLM, is a principal of Hancock Legal PLLC. She works with many LGBT clients in the areas of tax, trusts and estates, matrimonial and employment law.
