Berkeley Extends Benefits to Domestic Partners of City Employees

Berkeley, California, became the first U.S. city to extend health and other employee benefits to the gay and lesbian domestic partners of city employees.

Date December 4, 1984

Locale Berkeley, California

Summary of Event

On December 4, 1984, the city council of Berkeley, California, adopted a policy allowing unmarried employees to enroll their domestic partners for health and dental benefits, as well as to take sick leave or bereavement leave for situations involving their domestic partners. With this policy Berkeley became the first municipality in the United States to provide such benefits to its employees. The plan was negotiated as part of the contract between the city and its unionized employees and extended to all employees, so by adopting the contract, the city council effectively adopted the domestic partnership plan.

Two years earlier, the city and county of San Francisco board of supervisors had adopted a domestic partnership program for its employees, but it was vetoed by Mayor Dianne Feinstein, so it never took effect. Feinstein also resisted proposals to adopt a domestic partnership benefits plan in 1984 after receiving recommendations from a committee she had appointed. A modified plan was adopted in San Francisco in 1989, but it was overturned in a referendum by voters that same year. In 1990, a domestic partners registry was established and city employees became eligible to cover domestic partners on their health plans, but both of those moves were first subjected to unsuccessful referenda.

A few other cities adopted domestic partnership benefit plans in the 1980’s, the largest of which was Seattle, Washington. Small cities, such as West Hollywood, California, which approved the idea of providing domestic partnership benefits in 1985, found it difficult to implement their decisions because private insurers would not sell them the appropriate insurance policies. The earliest cities usually had to be self-insured to provide such coverage. Beginning in the 1990’s, however, a number of insurance companies developed products for both public and private sector employees that offered the option of domestic partnership coverage.

Local governments also had to face legal questions from groups opposed to offering domestic partnership benefit programs. In almost every state in which at least one city, county, or school district has offered employees a domestic partnership benefit option, a lawsuit has been filed charging that the local entity exceeded its powers under that state’s laws or constitution. The charge is usually either that the city is trying to create a marital relationship that only the state is allowed to create or that there is no authority for the city to offer such benefits, and therefore the offer should not be allowed.

In most cases, these arguments have not persuaded the state courts, although in Minnesota, Massachusetts, and Virginia, the courts did find that local governments could not offer domestic partnership benefits. In 2004, cases were pending in Pennsylvania, Louisiana, and Ohio. In other states—including Florida, Georgia, Colorado, New York, Arizona, Maine, Maryland, Washington, North Carolina, Illinois, and California—the state courts found that the cities did have authority to adopt such programs. About half the states, however, still have no local governments that offer domestic partnership benefits.

In establishing domestic partnership benefit programs, government employers, like private employers, have had to make some choices. How will domestic partnerships be defined? How are they established? What benefits will be offered? One of the major differences between public and private employers is in the way each entity decides who is eligible to form a domestic partnership. In the private sector, most employers opt to limit domestic partnerships to same-gender couples only on the theory that opposite-gender couples could make themselves eligible for benefits by marrying. In the public sector, because of legal concerns about both sex discrimination and sexual-orientation discrimination, most public employers allow both same-gender and opposite-gender couples to form domestic partnerships. In the cities that offer health benefits and keep statistics, opposite-gender domestic partnerships almost always outnumber same-gender domestic partnerships.

As for the “eligibility” requirements, most domestic partnership regulations look similar to those imposed on parties who want to get married, except for the gender of the partners. Typically the parties must be age eighteen or older, mentally competent, and not related by blood. Unlike marriage requirements, however, most have some requirement that the parties share a residence and have lived together for a specified period to establish their “domestic” partnership. Most domestic partnerships can be dissolved simply if only one party declares the partnership is ended and files paperwork to that effect. Most jurisdictions set a period of time that must pass after one domestic partnership is dissolved before a person can establish a new one.

In deciding which benefits to offer, more jurisdictions offer what are sometimes called “soft benefits,” such as the ability to take sick leave or bereavement leave to attend to a partner, rather than “hard benefits” like health, dental, and vision insurance, which often require the employer to pay a third party for the benefits. Even fewer jurisdictions with domestic partnership benefit programs go so far as to allow employees to designate domestic partners as eligible for survivors’ benefits of pensions earned by an employee, the way a surviving widow or widower would be, though a few public employers have begun to do this.

Significance

The city of Berkeley’s successful adoption of domestic partnership benefits began a trend that has reached the point where, according to the Human Rights Campaign, more than two hundred cities and counties offered some form of domestic partnership benefits as of June 1, 2006. These public-sector domestic partnership programs have become models for the private sector as well.

Bibliography

DeLeon, Richard. “San Francisco and Domestic Partners: New Fields of Battle in the Culture War.” In Culture Wars and Local Politics, edited by Elaine B. Sharp. Lawrence: University Press of Kansas, 1999.

Gossett, Charles W. “Domestic Partnership Benefits: Public Sector Patterns.” Review of Public Personnel Administration 14, no. 1 (Winter, 1994): 64-84.