By Scott J. Spivey

Diversity conversations frequently include the protected classes of race, color, national origin, sex, religion and age. But diversity is about learning from others who are not the same, about dignity and respect for all, and about creating workplace environments and practices that encourage learning from others and capturing the advantage of diverse perspectives.

1 In this regard, the issue of sexual orientation is frequently ignored in an almost “don’t ask, let’s not talk about it” fashion. Yet, there are aspects that cannot be ignored. Over the past decade, businesses have begun recognizing and acknowledging “the elephant in the room” — that they have gay employees who have the same needs as anyone else, including the need to take care of their loved ones. Recently, there has been a heated debate over whether same-sex couples should have the right to marry. Obviously, this would be the easiest way for committed same-sex couples and their children to enjoy the rights of other families. However, many states, including Louisiana, have passed legislation to prevent same-sex marriage. The debate has centered on the sanctity and tradition attached to the term “marriage.” Nevertheless, many leaders have acknowledged the need, if not the right, for same-sex couples to have the benefits of marriage, which, it is argued, can come with legal devices such as powers of attorney, contracts and wills. But notwithstanding these legal devices, it is frequently the employer who needs to acknowledge the right of an employee to protect his or her partner and their children through life, disability and health insurance or retirement benefits.

Such an acknowledgement was made by the City of New Orleans on May 23, 1997, when it began offering its employees health insurance coverage for domestic partners under the city’s health care program. Pursuant to the program, a New Orleans city employee could add his or her samesex domestic partner and any dependent children of the domestic partner onto the city’s health care coverage by registering as domestic partners and completing a “Domestic Partner Enrollment Form.” On June 17, 1997, the New Orleans City Council adopted a “Domestic Partner Registry” by which people living together in committed relationships may make a public declaration to care for each other and promise to provide for each other’s basic living expenses. In response, a lawsuit was filed in 2003by the Alliance Defense Fund on behalf of a group of New Orleans residents. Afterthe lawsuit was filed, state voters approved an amendment to Louisiana’s Constitution that forbids same-sex marriages in the state and adds, “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” As originally filed, the lawsuit contended that the partner registry ordinance violated a state constitutional prohibition against local governments passing laws “governing private or civil relationships,” and that the legislative authority of the City of New Orleans did not extend to providingdomestic partnership benefits for its employees. After the non-same-sex marriage amendment was passed, the plaintiffs added the argument that providing any legal recognition or benefits for domestic partners violated the amendment.
 
On Jan. 15, 2007, Orleans Parish CivilDistrict Court Judge Nadine M. Ramsey ruled in favor of the City of New Orleans. The court held that the New Orleans policies did not constitute an attempt to “govern” private or civil relationships, pointing out that it “simply ‘establishes a mechanism for the public expression and documentation of the commitment reflected by the domestic partnership.’” Judge Ramsey also saw no merit to the argument that the non-same-sex marriage amendment had any application. “The extension of health care benefits does not afford a legal status ‘identical or substantially similar to that of marriage,’” the court wrote, “nor does it in any way trample on any purported public policy favoring marriage over unmarried cohabitation. The City’s decision to extend health care benefits to the domestic partners of City employees simply provides health insurance to a greater number of persons, without regard to marital status.” On appeal, the 4th Circuit Court of Appeal upheld Judge Ramsey’s ruling. The 3-0 decision was authored by Chief Judge Joan M. Armstrong, joined by Judge
Charles R. Jones and Judge Max N. Tobias, Jr. The court noted that the ordinance does not create relationships and, therefore, does not conflict with state law. Rather, the court of appeal noted that the ordinance simply recognizes reality that such relationships exist and allows couples to register those relationships. The court further noted that the City Council has the authority to extend health insurance benefits as it deems appropriate. As the appellate opinion was recently published, a request for supervisory writ is possible. Should the Louisiana Supreme Court wish to accept writs, this would allow the court to address the right of the state and municipal governments to address the needs of all employees and their families, regardless of sexual orientation. Irrespective of the state, it is clear that private employers have the ability and the right to add same-sex partners and their children to benefit packages without government oversight. In fact, more than half of the nation’s largest corporations now extend health insurance to employee’s same-sex domestic partners and their children.

Many of these corporations, doing business in and around Louisiana, provide all benefits to same-sex partners and their families and have policies against discrimination based on sexual orientation, gender identity or expression. This list includes
 Allstate Corp., Anheuser-Busch Companies, Inc., Dell, Inc., General Motors Corp., Harrah’s Entertainment, Inc., J.P. Morgan
Chase & Co., MetLife, Inc., PepsiCo., Inc., Shell Oil Co., UPS and Visa.
 
FOOTNOTES
 
1. www.ilr.cornell.edu/library/research/subjectguides/workplacediversity.html.
 
2. Molly Selvin, “More Firms Offer Benefits to Gay Couples,” Los Angeles Times, June 30, 2006. 
3. 2009 Corporate Equality Index, A Report Card on Lesbian, Gay, Bisexual and Transgender Equality in Corporate America. Human Rights Campaign Foundation. Washington, D.C. www.hrc.org/cei.
 
Scott J. Spivey is a 1990 graduate of the United States Coast Guard Academy and a graduate of Loyola University Law School. He resigned his commission in 1996 during his last year of law school. After maintaining a solo practice for a few years, he began teaching at Fort Polk and became the workers’ compensation mediator for District 2 in Alexandria. In 2003, he joined the firm of Johnson, Johnson, Barrios & Yacoubian as an associate. In 2008, he became a partner with Wolff & Wolff as a trial lawyer. He is a member of the Louisiana State Bar Association’s Committee on the Profession.