Kudos to American University for expanding domestic partnership benefits to include different-sex couples

It's no surprise to readers of this blog (or my book) that I dislike domestic partner benefits extended only to same-sex couples. The first employer-provided DP benefits were for same- and different-sex partners, and the theory behind them was that "marriage" was too narrow a category for what counted as family and that a couple should not have to marry for one to be able to protect the economic well-being of the other. The rise of DP benefits for same-sex couples only, however, reflected a different perspective, one based solely on the inability of same-sex couples to marry. Same-sex only benefits accepted marriage as a proper criterion for extending benefits but gave same-sex couples benefits only because they could not marry.

The trend, as states have allowed same-sex marriage or other formal status, has been towards eliminating domestic partner benefits altogether and extending benefits only to married (or civilly united or registered) couples.

So I am thrilled to report on the new policy of my employer, American University. We have had same-sex only benefits for many years (and that is how my partner has health care). Over the years, my heterosexual colleagues have been shocked and angered that they have no access to these benefits for their partners. I can identify one colleague for sure, and there may be others, who married to cover a different-sex partner and would not have done so otherwise.

Well, effective in 2011, American University now provides DP health benefits to both same-sex and different-sex partners. When I inquired about the change I learned that at least one of the reasons is that different-sex couples can register as DPs in the District of Columbia and that insurance products that extend to spouses are required to extend to registered DPs as well. Whatever conversation this precipitated among our Human Resources staff resulted in the change in policy, which is not limited only to those who register in DC.

Here is how the new policy works. Any two people who have registered with a government agency as domestic partners, civil union partners, or reciprocal beneficiaries can automatically obtain coverage as DPs under the American University health plans.

Or, the couple can qualify if they satisfy enumerated criteria and can show that they have met those critieria for at least 12 months. They must live together, intend to do so indefinitely, meet the age/competency/not incest rules applicable to marriages in DC, and be "financially interdependent" and "responsible for each other's common welfare." To demonstrate the latter two criteria, the couple must have two of the following, and must have had them for at least 12 months: joint home ownership or tenancy; joint car ownership; joint bank account; joint credit cards or loans; a will naming the other as a beneficiary; durable powers of attorney; designation as primary beneficiary on a retirement plan or life insurance policy.

I could quibble at the margins with some of these requirements, but basically they hit the mark. The purpose of extending these benefits is to afford economic and emotional security to employees who seek to provide for the well-being of those with whom their lives are most intimately intertwined. Marriage or partnership registration are bright lines, but such lines are unjust; they make marriage mandatory and implicitly disrespect relationships, even long-term ones, between unmarried partners.

Now to the details of the AU standards. The 12-month requirement is long enough to accomplish two goals: minimize attempts to gain benefits when there is no real partnership between the employee and the other person, and ensure that there is the kind of financial interdependence that makes it appropriate to recognize the two people as a unit for employee benefit purposes. I strenuously oppose requirements like this when the legal issue is surrogate medical decision-making or hospital visitation (see my blog post here); whom the patient would choose to make a medical decision has little to do with joint bank accounts. If a person has not written a medical power of attorney naming a surrogate decision-maker, the default rule should be designed to pick the person the patient would pick and pick the person who most knows what the patient would want. That doesn't even require two people who live together; a close friend may be a better choice than a distant and estranged sibling.

But I'm satisfied that financial interdependence is appropriately required for a benefit that is based on the assumption that two people are making decisions, including decisions about employment, that reflect financial circumstances they have assessed as a unit. My beef is with any rule that presumes that only married couples do this. I'm thrilled that American University now agrees with me.