University Times

Attorneys for Pitt reiterated their argument last week that if the city Human Relations Commission accepts Deborah Henson's case against the University, all Pittsburgh employers (including the city itself) will be in violation of the city's anti-discrimination law unless they:

* Extend spousal health benefits to homosexual employees, or

* Discontinue spousal health coverage altogether.

Henson, a former legal writing instructor here, alleges that Pitt violated the city's anti-discrimination law in denying health benefits to her lesbian partner.

In April 1996, three months after Henson filed her complaint with the Human Relations Commission, the commission ruled that there was probable cause to believe Pitt had discriminated against her based on sexual orientation.

Pitt moved to dismiss the case in November. Henson's attorneys replied with a Jan. 29 brief. See Feb. 18 University Times.

Pitt then replied with another brief on Feb. 23.

One of Henson's attorneys, Christine Biancheria of the Pittsburgh firm Biancheria, Eriksen, Maliver & Angell, P.C., said Henson's side plans to file a 2-3 page reply next week to Pitt's latest brief.

After that, a Human Relations Commission spokesperson said, commissioners will accept no more replies and will begin considering whether to dismiss Henson's case or proceed with a hearing.

In its Feb. 23 brief, Pitt states: "No matter what steps Henson takes to make her argument appear less than it is, the remedy that she seeks, if granted, will result in a substantial extension of the city's regulation of public and private employers. Such a result cannot be directed by the commission because it is not mandated by the city code itself, and because such a remedy is pre-empted and barred by state law."

Like Pitt's November motion to dismiss Henson's case, the latest brief asks the commission to dismiss on the grounds that: (1) Pitt health 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 law 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 authority to order it.

Henson's case relies on the premise that the very act of making benefits available to spouses, but not same-sex partners, is unlawful discrimination, according to Pitt's Feb. 23 brief.

Henson also concedes that any employer that does not want to provide domestic partner benefits is free to do so, as long as it also cancels its spousal insurance, Pitt states.

"That premise and concession demonstrate conclusively that Henson's claim is not about discrimination under the city code, but about Henson's belief that our Commonwealth has defined marriage and spousal status too narrowly. That is a policy choice to be legislated in Harrisburg, not adjudicated by the commission," University attorneys write.

The city law does not outlaw distinctions based on marriage. Henson's argument that same-sex partners are legally equivalent to spouses "necessarily requires that the [city] code be read as protecting not only against sexual orientation discrimination, but also against marital status discrimination," according to Pitt's brief.

Gay and lesbian employees qualify for Pitt health benefits. Henson herself received such benefits when she worked here, the Pitt brief notes. "The essence of Henson's claim, therefore, is based on her relationship to her partner, and the fact that the University did not grant her partner spousal health benefits," the brief states.

Pitt attorneys dispute Henson's argument that her benefits package was less valuable than those provided to employees with spouses.

"This argument's logical extension," according to Pitt's brief, "is that one benefits package is 'less valuable' to those employees who do not, or cannot, have children, who do not, or cannot, qualify for enrollment in educational programs, or who do not, or cannot, become otherwise eligible for any other benefit.

"These examples demonstrate that any benefit that is based on some eligibility criteria, rather than simply equalizing dollars spent by the employer, may have different outcomes. That does not make such distinctions illegal."

— Bruce Steele