The ban on discrimination by private employers against homosexuals that is on the books in the District, Howard and Montgomery counties and 27 other jurisdictions nationwide may mean a lot more than either the companies or lawmakers originally thought. Gay activists now are pushing for a broad interpretation of those ordinances that would have them reach well beyond an overt refusal to hire or continue to employ homosexuals. As homosexuals are encouraged to be more open about their sexual preference, executives are going to be faced with increasingly complex personnel policy questions.
The hottest emerging issue is over fringe benefits. If a gay employe has a continuing relationship with another person -- one in which they share home, income and emotional support -- shouldn't that partner be treated just like a heterosexual spouse when it comes to fringe benefits? Or, if not, is that discrimination unlawful under the terms of anti-bias laws or a company's own personnel policies?
Public employes have taken the issue to court in California, seeking to cover partners under the state's dental insurance plans. The pioneering case for private employes also is pending in California, covering bereavement leave.
In that case, Larry Brinkin, an executive secretary for the Southern Pacific railroad, took some time off when his longtime lover committed suicide. The company refused to pay him for the days, insisting that the three days paid leave following death of a family member were available only for the relationships spelled out in a collective bargaining contract. Brinkin then sued under the San Francisco gay rights ordinance.
In another development, a gay professor at the University of California is using administrative channels to press his demand that his lover be given a university library card, a privilege normally extended to members of faculty families; he has already lined up legal backing for a suit if the school refuses.
But litigation is not the only front on which this issue is being pursued. The Madison Institute for Social Legislation in Wisconsin (the only jurisdiction with a state-wide law barring discrimination against homosexuals) is drawing up model labor-contract language that unions can use in bargaining for partner coverage under fringe-benefit plans. One nurses' union in Madison has already gotten a hospital to award bereavement leave to homosexuals when a close partner dies. And the Lesbian Rights Project in San Francisco is working on a booklet that will spell out how workers can bargain for partner rights.
At the moment, the movement has two strands. The Madison group insists that it is working for far more than gay rights: All forms of families should be recognized as the equivalent of married families, says the Institute's Susan Green, including heterosexual couples who choose not to marry and joint households where there is no sexual involvement at all. But some gay activists insist that their situation is unique because many homosexual couples are unmarried not through choice, but because the law will not recognize same-sex unions. Any corporate personnel policy that depends on marriage as a criterion is therefore inherently biased against gays, they argue.
Companies where the issue has come up recently -- American Telephone & Telegraph Co. and General Mills Inc., for example -- point to the legal distinction as the key one. Trying to avoid confrontation over a question rife with land mines, the usual company response has been that the gay employe is pressing his case in the wrong forum. Take the arguments to the legislature, the personnel administrators say: When the state puts homosexual and heterosexual unions on an equal footing, so will we.
Although companies are skittish about discussing the issue on the record -- and the filings in the court cases are based on interpretation of local ordinances, not corporate policies behind a decision to fight a request for recognition of homosexual couples -- their concern seems two-fold. They fear that straight, married employes will resent extending benefits to gay couples. They also worry that recognition in one, relatively minor area -- such as access to the employer's facilities -- can lead to demands for more expensive fringes. Green admits the strategy behind the nurses' demand for bereavement leave after the death of a lover is, "if they'll agree to the principle that the relationship is valid, then maybe employers will be willing to take it one step further."
Eventually, the issue will reach beyond employment fringes to all business operations that are based on a traditional definition of a family: the National Gay Rights Advocates is working on two cases against the American Automobile Association -- one in San Diego and one in Columbia, Md. -- challenging AAA's refusal to extend a spousal discount to same-sex couples.