University Times

Last week, Pitt and the American Civil Lib- erties Union announced an agreement where-by a special committee will consider whether the University should extend health benefits to employees' same-sex partners.

The group will report its findings and recommendations to Chancellor Mark Nordenberg. Meanwhile, Pitt and the ACLU have suspended litigation in the case.

The following is a description of events that led to last week's breakthrough.

* Plaintiffs in a lawsuit alleging that Pitt discriminates by denying health benefits to its employees' gay and lesbian partners suffered a serious setback in April 2000: An Allegheny County judge issued a temporary injunction ordering the city Human Relations Commission to stop investigating the complaint.

Common Pleas Judge Robert C. Gallo found no evidence of intentional discrimination. He ruled that Pitt's denial of health insurance to the plaintiffs was based on their marital status, not sexual orientation.

One of the seven plaintiffs, Mark S. Friedman, recalled recently: "After the Gallo ruling, we discussed options with our attorneys. We could either appeal the case at the Common Pleas level or pursue it to the Pennsylvania Supreme Court." Either way, the discrimination lawsuit faced a long, uncertain future.

Then, in a meeting last August, ACLU lawyers presented plaintiffs with a third option: Suspend the lawsuit and negotiate with the University.

"The attorneys said it was up to us, that they would pursue the legal battle if we did not want to go through negotiations," said Friedman, a staff member in Pitt's infectious diseases and microbiology department. "I was very supportive of suspending the legal activity."

Other plaintiffs weren't so sure. Ray Anne Lockard, head of the Frick Fine Arts Library, remembered: "When we were told of the option to negotiate, I was upset because I know how long it takes to get things done at this University. On the one hand, I knew we needed to negotiate. On the other hand, I said, 'Here we go, another two or three years….'"

Ultimately, plaintiffs authorized their attorneys to work with Pitt lawyers on a compromise.

"All of us [plaintiffs] agreed that it was the right thing to do," said Deborah Henson, a former Pitt legal writing instructor who now is a private practice attorney in New Orleans.

"If the litigation had gone smoothly in our favor, which rarely happens for anyone, we probably would have pressed on with our case," she acknowledged. "But even when litigation goes in your favor, it's very slow. Things get docketed slowly, they have to be argued and briefed."

* Henson initially tried to work within the University system in seeking spousal health coverage for her lesbian partner. She had applied for such benefits in summer 1994, days after starting work at Pitt, and was surprised to learn that the University didn't extend health benefits to same-sex partners.

"Actually," Henson said in a 1999 University Times interview, "some of the faculty at the law school had told me that I could sign up for benefits, because there had been all of the press about the domestic partnership registry that was established in 1993" to provide limited benefits (including bereavement leave, tuition reduction and library borrowing privileges) for same-sex partners.

Henson appealed for help to the University Senate anti-discriminatory policies committee, which studied the situation and urged Pitt's administration to offer health benefits to employees' same-sex partners.

After 18 months without success, Henson sued Pitt. In a complaint before the city Human Relations Commission, she charged that the University violated the city's anti-discrimination ordinance by denying equal benefits to gay and heterosexual partners. Six current Pitt employees subsequently joined Henson in a class action suit.

Pitt lawyers asked the commission to dismiss the complaint, arguing that: (1) the University's health insurance does not discriminate based on sexual orientation; (2) while Pitt restricts spousal health coverage to married couples, marital status is not covered under the city's anti-discrimination law; and (3) the remedy Henson sought was pre-empted, or contrary to, state law, and the Pittsburgh commission lacks jurisdiction to order it.

This last argument — that Pennsylvania municipalities lack the legal authority to pass anti-discrimination laws exceeding state laws — triggered a public controversy pitting faculty governance groups, city officials and student hunger strikers against Pitt administrators and trustees.

Protesters accused University leaders of trying to undercut legal protections for gay and lesbian Pittsburghers. Pitt officials said they weren't attacking the city law, only defending the University against a wrongheaded legal claim.

In November 1999, state legislators passed a law exempting public universities from local ordinances that would force them to provide health benefits to same-sex couples.

The following April, Allegheny County Judge Gallo ruled that the state law superceded the Pittsburgh Human Relations Commission's jurisdiction in what had come to be called "the Henson case."

But while Pitt was scoring legal victories, a growing number of other local employers, including Carnegie Mellon and Chatham College (both private institutions, Pitt officials pointed out), began offering same-sex health benefits.

* Last spring, the University Senate anti-discriminatory policies committee proposed a way out of Pitt's legal and public relations morass. It urged creation of a joint committee of faculty, administrators, trustees and others to consider whether the University should extend health benefits to same-sex partners.

Faculty Assembly endorsed the idea, citing the precedent of a similar committee that had addressed Pitt's policy on South Africa-related investments.

Chancellor Nordenberg had served on the latter committee. He told Senate Council on June 12: "I did see good come out of that process then, but I also know that what can happen…is shaped to a considerable extent by the environment in which that discussion takes place."

Nordenberg called the ongoing lawsuit against Pitt "a major impediment to engaging in the kind of free and open dialogue that the [anti-discriminatory policies] committee is seeking."

But the chancellor did not rule out establishing a joint committee if plaintiffs agreed to call off their lawsuit.

Anthony Silvestre, spokesperson for the Equal Rights Alliance that opposed Pitt's stance on same-sex benefits, was among those who picked up on last spring's peace feelers. "When [Faculty Assembly] suggested that the parties work together to put together a committee to deal with this issue similar to the way the University dealt with divesting from South Africa, I think we felt that the tide had turned," said Silvestre, an assistant professor in the infectious diseases and microbiology department.

Silvestre said the Equal Rights Alliance was poised to launch a fundraising drive among churches and labor unions to support the lawsuit against Pitt. "But last fall, when the rumors started about possible negotiations, we agreed to slow down a bit and not rock the boat too much," he said.

ACLU lawyers updated plaintiffs on general progress but not specifics of the negotiations. "We were not clued in on the negotiations themselves," said Mark Friedman. "It was strictly between the lawyers, which I think is appropriate. But we had to sign off on this agreement" to temporarily suspend the lawsuit while a committee of faculty, staff, students, administrators, trustees and alumni studies the issue of health benefits for same-sex partners.

Several people privy to the negotiations told the University Times — anonymously — that Pitt General Counsel Alan Garfinkel played a leading role. Board of Trustees Secretary Robert Dunkelman (who emphasized that he personally did not participate in the negotiations) said: "The key person in this whole thing was Alan."

Garfinkel did not return phone calls from the University Times.

ACLU attorney Roslyn Litman refused to specify how she, Garfinkel and other lawyers contributed to the breakthrough that led to creation of the committee that will make recommendations to Chancellor Norden-berg.

"I don't think it's really appropriate to discuss who said what to whom at what time," Litman said. But she added, "I think the approach we're taking is an intelligent compromise for everybody."

— Bruce Steele and Peter Hart