University Times

Attorneys from the ACLU said yester- day that they haven't decided how to proceed following an Allegheny County judge's ruling that Pitt does not discriminate by denying health benefits to employees' gay and lesbian partners.

Pitt officials, meanwhile, weren't saying whether they plan to file for a permanent injunction in a further effort to kill the four-year-old same-sex benefits civil suit.

"The University does not want to assist those who oppose us in a legal arena by declaring in the open media what our strategy is," said Robert Hill, Pitt's executive director for Public Affairs.

Hill declined further comment, referring the University Times to Pitt's April 20 statement. For the complete text of the statement, see page 3.

Christine Biancheria, an ACLU attorney representing plaintiffs in the case, said: "If the University thinks that the fight is over, they're wrong. We're discussing a number of options, which I prefer not to mention at this point."

An interested party in the case, Pittsburgh Human Relations Commission (HRC) director Charles Morrison, predicted yesterday that the plaintiffs will appeal the judge's decision and that Pitt will file for a permanent injunction. "It's just from what I'm hearing; I don't have firsthand knowledge. But I don't think it's over yet," Morrison said.

Common Pleas Court Judge Robert C. Gallo ruled April 20 that the HRC must stop investigating allegations that the University has discriminated against one former and six current employees in a gay rights case that has drawn national attention.

Pitt argued that the legislation passed by the Pennsylvania General Assembly in November superseded the 1990 Pittsburgh city ordinance on which the case was based.

House Bill 115 says in part: "An ordinance adopted by a municipality which requires, or the effect of which is to require, the provision of health insurance or other employee health care benefits shall not apply to a state-owned or state-related college or university."

Deborah Henson, a former legal writing instructor at Pitt, filed a complaint in January 1996 alleging that the University discriminated against her in employment by denying health benefits to her lesbian partner. The 1990 Pittsburgh Human Relations Act prohibits discrimination in employment, including discrimination in compensation, on the basis of sexual orientation. Six current Pitt employees subsequently joined Henson in a class action suit.

In his 16-page decision, Gallo concluded that "the denial of health benefits to Pitt employees is based upon marital status not sexual orientation," as claimed by the complainants. Gallo added, "It is repugnant to this Court for any entity to deny health benefits to employees based upon their sexual orientation. However, this Court is precluded from construing the Act [the Nov. 16 General Assembly legislation] in accordance with its own beliefs when the clear intent of the Act provides otherwise.

"The Pitt health benefit policy, facially neutral, precludes all unmarried, domestic partners from receiving these benefits."

In a written statement, Pitt spokesperson Ken Service, said, "This ruling clearly upholds what has been the University's position throughout these proceedings — namely that the University's health benefits plan is legal and non-discriminatory, that the extension of benefits can lawfully be based on marital status, and that there has never been any intent to discriminate against individuals on the basis of sexual orientation."

Judge Gallo further determined that the HRC lacks jurisdiction in the case. He acknowledged that under Pittsburgh City Code, the HRC, after finding probable cause, is entitled to conduct public hearings to determine if unlawful acts had been committed and to order remedies.

"Therefore in order to consider any potential remedy, Pitt would have had to engage in an unlawful practice," Gallo wrote.

"Recognizing that Pitt's health care contract on its face prohibits Pitt from providing health benefits to both same sex and heterosexual unmarried couples, making no distinction between the two, it is clear the Commission would be precluded from finding that an unlawful practice had been committed by Pitt."

He added that the November state legislation would pre-empt any component of the ordinance on which the suit was filed. "The Ordinance having been pre-empted by the Act, provides no jurisdictional basis for the Commission to prosecute the case before it," Gallo wrote.

HRC director Morrison said the commission is studying Gallo's ruling in consultation with the HRC's solicitor. After that, the commissioners will discuss their options.

"We're disappointed in the judge's ruling," Morrison said, adding it was the first time in the commission's history that an injunction had stopped an HRC hearing. "But I don't believe the ruling undermines the commission's authority. The judge's decision seems tailored to this case, specifically to the damages phase of the case, where the judge sees the November legislation as rendering this issue moot."

In granting the injunction, Gallo ruled that Pitt has demonstrated that continuing the HRC procedures would amount to "irreparable harm," a necessary condition under state law.

The judge wrote that continued litigation would cost current and former Pitt officials, including members of the Board of Trustees, considerable time and money for "a meaningless trial without any legal basis," which he said constituted irreparable harm.

Gallo cited Pennsylvania Utility Commission v. Israel (1947), which defined irreparable harm as follows: "When the legislature declares certain conduct to be unlawful, it is tantamount in law to calling it injurious to the public. For one to continue such conduct constitutes irreparable harm."

"Therefore," Gallo wrote, "an attempt to disregard a statutory mandate would constitute irreparable harm."

Gallo also stated: "Clearly a continuation of this investigation will cause Pitt to endure unnecessary inconvenience and expense. The Commission could continue this investigation that is emotionally charged and fiercely fought. At the conclusion of its investigation, the Commission, without a remedy, would be unable to compel Pitt to award benefits to unmarried, same sex domestic partners, making Pitt suffer a 'Pyrrhic victory.' Therefore, in order not to prolong needless litigation, [Pitt's] motion for a preliminary injunction is granted."

Plaintiffs' lawyer Biancheria disagreed with Gallo's findings. "The judge is clearly wrong on the law. He misinterpreted the law on irreparable harm, and the recent legislation doesn't apply in this case. The judge made rulings on matters that require presentation of evidence in a trial before they can be ruled on. And he has usurped the function of the Human Relations Commission."

Gallo delayed ruling on a companion case involving former Pitt trustee Judge James J. Flaherty, who is seeking a preliminary injunction to quash a subpoena issued by the Henson attorneys.

q In April 1996, the Human Relations Commission ruled there was probable cause to believe that the University had discriminated against Henson based on sexual orientation.

A motion by Pitt to dismiss the case was denied by the HRC in June 1999 and a second motion to dismiss was denied last December.

Since 1993, Pitt has provided some benefits to qualified same-sex couples, including tuition remission and library privileges for employees' partners and bereavement leave for employees.

But the University has consistently based health care benefits eligibility on marital status (including common law marriage). Pitt says it does not discriminate against gays and lesbians and is not required by law to extend medical benefits to same-sex partners (or unmarried, opposite sex partners) of employees.

Plaintiffs in the Henson case have argued that Pitt's policy discriminates against them because, unlike heterosexuals, they cannot legally marry.

In 1996, Gov. Tom Ridge signed into law a bill defining marriage as a pact between a man and a woman.

–Peter Hart