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Todd A. Solomon Headshot

While States Wrestle With Recognition of Same-Sex Partnerships, Corporations Continue to "Get it"

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When I first started working with corporations to implement benefit programs for domestic partners of their employees, a relatively small group of employers were progressive enough to offer such benefits. For example, in 1999, less than 50 of the Fortune 500 companies offered these benefits. However, in the last ten years, corporations across America have embraced the notion that LGBT diversity and LGBT-friendly employment policies such as domestic partner benefits are not only the right thing to do, but are also good for business.

According to the Human Rights Campaign, the nation's largest civil rights organization working to achieve LGBT equality, nearly 60 percent of the Fortune 500 companies now offer domestic partner benefits to their employees. In addition, 85 percent of the Fortune 500 companies have amended their employment discrimination policies to prohibit discrimination on the basis of sexual orientation and 35 percent also prohibit discrimination on the basis of gender identity. In fact, the Human Rights Campaign has found in its annual Corporate Equality Index that the more successful the company and the higher the company's rank on the Fortune list, the more likely the company is to have these benefits and protections in place. Notably, more than 70 leading employers in the United States have joined the Business Coalition for Benefits Tax Equity and publicly support legislative efforts to end the unequal taxation of health benefits for domestic partners.

Meanwhile, state governments and the federal government continue to have an identity crisis regarding whether they should provide legal protections to same-sex couples. For example, several states (most notably California and Maine) have legalized same-sex marriage only to subsequently repeal such legal protections. In addition, it is still permissible to fire a gay or lesbian employee on the basis of sexual orientation in 29 states and on the basis of gender identity or expression in 38 states. While the federal Employment Non-Discrimination Act has been proposed several times as a means of protecting LGBT individuals from employment discrimination, it has yet to garner enough votes in Congress to pass. Finally, while several LGBT-friendly changes have been made by the federal government in the last year, several other major changes have been proposed but have not successfully passed, in particular tax relief for domestic partner health benefits, benefits for domestic partners of federal government employees, and the repeal of the military's Don't Ask/Don't Tell policy.

Unlike the civil rights era where courts and legislatures were making laws that the public at large may not have been ready for, what is interesting about the domestic partner benefits arena is that corporations and the people who work for them seem to be ready for LGBT equality before many state and local governments (and certainly the federal government) are. It will be interesting to see if the momentum gained by the federal government's recent overtures toward the LGBT community trickles down to additional states and localities, as well as whether the upcoming change in the Supreme Court may impact the jurisprudence governing the rights of LGBT individuals throughout the country.