New city law could require all employers to treat gay couples like married spouses
All employers in New York City covered under the Human Rights Law are required to provide employees with domestic partners equal treatment in compensation, terms, conditions, and privileges of employment under a new law passed by the City Council and signed by Republican Mayor Michael Bloomberg on October 3.
According to the Committee Report that accompanied Intro 22-A, the Local Civil Rights Restoration Act, the provision “will ensure that life partners who have memorialized their relationship by becoming domestic partners… receive protection from all forms of discrimination addressed by the Human Rights Law, just as married partners do.”
The new law adds the category of “partnership status” to the protected categories in the city Human Rights Law and defines it as “the status of being in a [registered] domestic partnership.”
Craig Gurian, the civil rights attorney who helped write this strengthening of the Human Rights Law and the previous one in 1991, said, “New York City has now done all in its power to provide the entire bundle of rights that are protected in housing, employment, and public accommodations to domestic partners.” He added, “The Human Rights Law doesn’t say anything about how much in terms of benefits a company has to give,” but it now says that people in domestic partnerships can’t be treated unequally.
Alfonso David, staff attorney at Lambda Legal Defense, which was part of the coalition backing the bill, said it “provides us with a tool” to seek equal benefits for domestic partners. He could not say it “definitely does” because “we don’t know how the courts will react to that.”
David was asked whether that meant that a private employer can continue to provide coverage to spouses but not to domestic partners.
“An employer can say, ‘I’m not refusing to provide it because you have a domestic partner.’ They could come up with some other pretext,” he responded. “Hopefully, the courts will see through that.”
David added, “The federal ERISA insurance laws generally pre-empt state and local anti-discrimination laws, therefore a private employee may face some substantial challenges in attempting to rely on the Human Rights Law as a basis for his or her claim.”
Donna Lieberman, executive director of the New York Civil Liberties Union, said, “We’re happy to advocate for people seeking this right” under the new law. But she is unsure how the ERISA laws would come into play, calling them “highly technical and abstruse.”
Gurian wrote in an e-mail, “The City’s Human Rights Law has long disclaimed (and continues to disclaim) any intention to do anything pre-empted by ERISA, but I would argue that equality for domestic partners doesn’t unduly burden ERISA benefits administrators. In any event, there is no question that a broad range of employer conduct and housing provider conduct is covered, and no question that non-ERISA benefit plans are covered as well.”
City Councilwoman Christine Quinn, the lesbian Democrat from Chelsea who was the chief sponsor of the Equal Benefits Law, said of Gurian’s assertion that equal benefits must now be provided to all, “Our pro bono and Council lawyers are researching it. I hope it’s true.
City Councilwoman Gale Brewer , a West Side Democrat, sounded a similar theme.
Bloomberg, whose veto of the Equal Benefits Bill last year was overridden by the Council, is currently in court challenging the law that requires contractors doing business with the city to provide benefits to domestic partners of employees if they provide them to their spouses. Gurian’s interpretation of the Civil Rights Restoration Act is that “New York City has now made equal rights for domestic partners a fundamental aspect of its law, and thus one of the administration’s core arguments against the Equal Benefits Law—that the city should not dictate employment policies for fear of those employers leaving town—is now definitely rejected.”
At the bill signing for the new measure in City Hall’s Blue Room, Bloomberg said, “While there are provisions of this bill that are of concern, on balance, the central tenet of this legislation makes this bill worthy of support.”
He added, “Explicitly including partnership status on the list of protected classes is a commonsense measure in keeping with our city’s best traditions of justice and equality.”
While the “partnership status” addition is perhaps of greatest interest to the LGBT community, the new law was hailed as a bulwark against federal and state court decisions that have rolled back human rights.
Irum Tariq, legislative counsel for the NYCLU, said, “In light of the transformation of the federal courts and the Supreme Court as we speak, the frontier in the effort to protect civil rights will be in the city halls and state capitals of this country.”