Saturday, August 4, 2007

In Civil Unions, New Challenges Over Benefits

In Civil Unions, New Challenges Over Benefits

August 1, 2007
News Analysis
NEWARK, July 31 — United Parcel Service now grants full health benefits to same-sex partners of its employees, provided they have registered for a civil union in New Jersey (as opposed to, say, in Vermont). But FedEx does not provide benefits to the partners of its New Jersey workers — unless they happen to work at Kinko’s, a FedEx subsidiary.

New Jersey’s civil union law was supposed to fulfill the State Supreme Court’s mandate that gay and heterosexual couples be granted the same rights and benefits. But more than five months after its adoption, gay-rights groups and those who have obtained civil unions said the reality of the law’s application remained a hodgepodge, and that hundreds of people were struggling to persuade their bosses to treat their partners like spouses.

United Parcel, for example, changed course this week only after Gov. Jon S. Corzine intervened, sending a letter to the company to clarify its responsibilities under the state law and appealing to its executives’ sense of decency and fair play.

The Corzine administration has heralded U.P.S. as an example to press other companies to provide benefits, and is relying on couples to come forward and complain if they feel they are being denied benefits. Gay-rights groups, meanwhile, have thus far shied away from going to court to overturn the civil union law, and instead hope to highlight such disparities to persuade the State Legislature to approve same-sex marriage by 2008.

“The ideal is to keep pointing out company after company after company,” said Steven Goldstein, chairman of Garden State Equality, a statewide gay-rights organization. “We’ve done it with personal stories. It’s going to be a steady drip, drip, drip of couples and their children.”

Whether United Parcel’s reversal this week was a step toward that ultimate goal is an open question. The couples now eligible for benefits may celebrate, but their success is seen in some circles as evidence that the civil union law can be leveraged to force equality, undercutting at least some of the argument that nothing short of marriage is adequate.

“Everyone behaved as you would hope sensible people would,” said Ingrid W. Reed, director of the New Jersey Project at the Rutgers Eagleton Institute of Politics. “It’s something we don’t often see in public issues. The Legislature makes a decision, and very rarely gets feedback on how it’s being implemented. Here, you quickly got a remedy, and it put everyone on notice that you have to be vigilant.”

Nathaniel Persily, a law professor at Columbia University, said it was too early to judge the future of the state’s experiment with civil unions.

“The pace of legal and public opinion change on this issue has been dramatic,” he said. “The fact that private entities have not fully complied with the spirit of the New Jersey law within one year of the legislation is not terribly surprising. For social innovations to penetrate the private sector takes time.”

The disparities, of course, do not stop at New Jersey’s borders. Teamsters who work for United Parcel Service in Massachusetts, where gay marriage is legal, are already eligible for spousal health benefits, but the company is currently reviewing the civil union laws in Vermont and Connecticut, a spokesman said.

And FedEx offers benefits to same-sex couples only in California, which requires companies with large state contracts to guarantee domestic partners the same benefits that spouses have. That means no to civil union couples here and in Vermont and Connecticut — and to same-sex spouses in Massachusetts.

“Each FedEx company makes independent decisions on what benefits are offered to its employee base,” said Sandra Munoz, a spokeswoman, explaining the Kinko’s exception. “Insurance costs are rising daily,” she noted, adding that the company looks for coverage that meets a majority of its employees’ needs.

And here in New Jersey, FedEx is hardly alone in withholding benefits. Mark Brower, who works at ShopRite, registered in February, the month the law took effect, for a civil union with his partner, Christopher Mastrian, who is self-employed. Mr. Brower’s union, United Food and Commercial Workers Local 1262, told him over the phone that they would not extend benefits to Mr. Mastrian, and gave no reason.

“I was angry, disappointed,” he recalled. “How could they break New Jersey law?” Mr. Brower eventually hired a lawyer, hoping a letter would bring the union around. So far, it has not. A union representative could not be reached for comment late Tuesday.

Craig Ross said he works for a Fortune 500 technology company that he requested not be named for fear of retaliation. He asked the company to provide benefits for his civil union partner, Richard Cash, who had lost his job at an insurance company.

Mr. Ross said he was told that the company would not extend the benefits because of the Employee Retirement Income Security Act of 1974, known as Erisa, which preempts state laws and allows self-insured employers to choose how to define “spouse.” Mr. Cash pays $450 a month now for his own health care.

Andrew D. Sherman, a benefits consultant who works in Massachusetts, where same-sex marriage became legal in 2004, said the law had made it easier for many companies to deal with the administrative hurdles that can scuttle benefits. “Marriage is a term they are familiar with, and know how to administer,” he said. “They present a marriage license, and all the terminology and documentation are familiar.”

In New Jersey, J. Frank Vespa-Papaleo, director of the state’s Division on Civil Rights, said the scope of the problems remained unclear because only four complaints had come to his office so far, while Mr. Goldstein and other gay-rights advocates cite some 200 couples as having problems getting benefits.

“Individuals who file are protected from retaliation,” Mr. Vespa-Papaleo said, noting that the New Jersey Civil Union Review Commission is planning public hearings this fall to discuss the law. “People shouldn’t have to be experts on benefits law. That’s what we’re here for.”

Ms. Reed said United Parcel’s granting of benefits shows a meeting of the interests of both the state and the advocates for gay marriage, something she described as a “textbook case” of “constructive” activism.

“This is a decision that clarified the law,” she said. “You found the one case that was clear, and you brought it to the media. And, you had the commitment of public officials.”

For the state, United Parcel’s decision was a win “for the fairness principle,” Ms. Reed said. And for the advocates, she added, it showed that civil unions are not equal, “and you have to fight in each case.”

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