University Times

Deborah M. Henson left the University nearly three years ago. But the legal battle over Pitt's denial of spousal benefits for her lesbian domestic partner continues.

Henson's lawyers — including attorneys from the national and state offices of the American Civil Liberties Union (ACLU) — filed a brief last week with the Pittsburgh Commission on Human Relations, opposing a motion by Pitt last November to dismiss Henson's claim.

Henson, a legal writing instructor in Pitt's law school from 1994 until she left for a job in Louisiana in mid-1996, filed a complaint in January 1996 alleging that the University discriminated against her in employment because she is a lesbian.

In denying health benefits to her domestic partner, Henson alleges, the University violated the Pittsburgh Human Relations Act. The act prohibits discrimination in employment, including discrimination in compensation, on the basis of sexual orientation.

Pitt attorneys argue (among other things) in their motion to dismiss Henson's claim that Pennsylvania municipalities lack the legal authority to pass anti-discrimination laws adding sexual orientation to the list of "protected categories" mandated by the Pennsylvania Human Relations Act.

Those state-mandated categories include race, color, religion, ancestry, national origin, place of birth, sex, age, and non-job related handicap or disability. But not sexual orientation.

Several Pennsylvania municipalities — including Pittsburgh, Philadelphia and Harrisburg — have passed laws prohibiting employment discrimination based on sexual orientation.

According to Henson's lawyers, neither the state constitution nor any Pennsylvania statute prohibits municipalities from enacting laws to protect homosexuals from employment discrimination.

"If the Pittsburgh commission endorses the University's argument, it would render the city's anti-discrimination ordinance defunct as it relates to discrimination based on sexual orientation," said one of Henson's attorneys, Christine Biancheria of the Pittsburgh firm Biancheria, Eriksen, Maliver & Angell, P.C.

"It also would set a bad precedent which, if it's ultimately accepted by state appellate courts, could affect municipalities throughout the state," Biancheria said.

Leslie Cooper, a staff attorney at the ACLU's national lesbian and gay rights project in New York City, said: "Workplace issues for lesbian and gay people have always been a top priority for the ACLU. Our feeling is, you can't talk about workplace equality without talking about benefits. Benefits are a significant portion of employees' compensation.

"What is so offensive about the case the University of Pittsburgh is making," Cooper said, "is that the University is challenging the sovereignty of the cities of Pennsylvania, as well as attempting to dismantle the legal protections those cities offer to lesbian and gay people." Pitt Executive Vice Chancellor Jerome Cochran, who is also interim general counsel, said it is the University administration's policy not to comment on ongoing litigation.

q Last fall, two current University employees (a faculty member and a staff member) filed complaints with the Pittsburgh Commission on Human Relations that are virtually identical to Henson's in alleging that Pitt has discriminated against them in employment because they are homosexual.

Biancheria, who also represents the two employees, said: "They filed their own, individual complaints, and we have asked to consolidate the three — theirs plus Deb Henson's — as class actions. We're not expecting the [Pittsburgh] commission to act on this request until after it has ruled on the University's motion to dismiss" Henson's claim. Biancheria refused to identify the two employees, saying they have asked not to have their names publicized. q In April 1996, three months after Henson filed her initial complaint, the Pittsburgh Commission on Human Relations ruled that there was probable cause to believe the University had discriminated against Henson based on sexual orientation.

On Nov. 20, 1998, Pitt filed a motion asking the commission to dismiss the case on the grounds that: (1) the University's medical insurance coverage complies with state law and does not unlawfully discriminate against Henson or anyone else based on sexual orientation; (2) while Pitt does restrict spousal medical coverage to married couples, marital status is not covered under the city's anti-discrimination code and is a permissible classification for insurance purposes; and (3) the remedy Henson seeks is pre-empted by, or otherwise contrary to, state law, and the Pittsburgh commission lacks the jurisdiction to order it.

The introduction to Pitt's brief concludes: "In sum, because Henson's complaint effectively seeks to have the University (and necessarily every other employer in the City) deem a domestic partner as equivalent to a spouse (and to deem the failure to do so 'intentional discrimination'), a result city law does not mandate, the complaint must be dismissed in its entirety." According to the brief that details Henson's response, Pitt discriminates against homosexual employees by using legal marriage as the sole criterion for health benefits eligibility — "knowing that only its heterosexual employees can access those benefits and its gay and lesbian employees never can." In 1996, Gov. Tom Ridge signed a bill defining marriage as a pact between a man and a woman, effectively barring same-sex marriages.

Like the University of Pennsylvania, Swarthmore College and a number of other employers in the state, Pitt could easily extend its eligible criteria to include employees' same-sex partners, according to Henson's brief: by letting homosexual employees present documentation of their long-term relationships.

The brief points out that Pitt already has such a domestic partner registry in place, enabling same-sex partners to qualify for the limited benefits currently available to them here: limited tuition remission and library privileges for employees' same-sex partners, and bereavement leave for homosexual faculty and staff upon their partners' deaths.

Henson's brief continues: "The Pittsburgh [Anti-Discrimination] Code prohibits sexual orientation discrimination in employment. Deborah Henson challenges the University's refusal to provide equal access to these benefits because, whether intentionally or not, it has a discriminatory effect on gays and lesbians because they are categorically excluded. Because the University's policy has a prohibited disparate impact on gay and lesbian employees who can never satisfy its chosen eligibility criterion, it discriminates on the basis of sexual orientation.

"The University's current argument that the policy is merely a form of allegedly permissible marital status discrimination is irrelevant as Ms. Henson's claim is based on sexual orientation discrimination." In 1993, Pitt's Human Resources office estimated that the cost of providing spousal health benefits for all unmarried couples (including heterosexual and same-sex couples) would have been $50,000, compared to the University's payment for spousal benefits of nearly $2.9 million that year.

The University Times was unable to obtain a more recent estimate from Human Resources.

Henson's attorneys allege that Pitt is spending more in legal fees to fight her claim than it would cost the University to extend spousal health benefits to homosexual employees.

Henson's brief suggests that "anti-gay animus" among some Pitt trustees helps to explain the University's refusal to extend spousal benefits to same-sex couples.

At the Oct. 22, 1993, Board of Trustees meeting, then-trustee James Flaherty, now a Commonwealth Court judge, moved to delete from Pitt's budget a $10,000 line item for limited in-house benefits to same-sex domestic partners. Flaherty said the funding represented a "promotion of homosexuality." The board narrowly defeated Flaherty's motion.

Two trustees, Thomas J. Usher and Thomas Marshall, told the University Times they resigned in fall 1993 as chairperson and co-chairperson, respectively, of the fundraising campaign for the planned College of Business Administration because they believed that granting limited benefits to same-sex partners would hurt fundraising for the college.

In an Oct. 26, 1995, University Times interview, current board chairperson J.W. Connolly said that, if Pitt faculty and students favored extending same-sex benefits, "then there is a different view on social issues between the trustees and the University community." q This week, the commission granted the University's request to file still another brief by the week of Feb. 22 in reply to Henson's Jan. 29 response, according to commission staff director Charles Morrison.

"Then, in fairness, we'll have to give the other side a chance to reply to Pitt's reply," he said. "After that, I would think, the commissioners will say, 'Okay, that's enough.'" Morrison predicted that the commission will rule by mid-March on whether to dismiss the case or proceed with a hearing.

If the commission accepts Pitt's motion to dismiss, Henson can appeal her case to Commonwealth Court of Pennsylvania. If the commission decides to hold a hearing, Henson or the University could appeal any ruling that results.

q Pitt isn't the only state-related university in Pennsylvania that doesn't offer full spousal benefits to partners of gay and lesbian employees.

Penn State President Graham Spanier announced last month that he could not comply with the Penn State faculty senate's request to extend spousal benefits to same-sex couples.

Spanier blamed opposition in the state Legislature, according to the Associated Press.

— Bruce Steele