300 Employers Urge SCOTUS to Declare DOMA Unconstitutional
February 27th, 2013
More than 200 businesses, a couple score of law firms, sixteen civic, professional and trade groups, seventeen cities and counties and the United States Conference of mayors — the short list of signatories runs six pages alone — have signed on to an Amicus brief urging the U.S. Supreme Court to declare Section 3 of the Defense of Marriage Act unconstitutional. The brief, filed in support of Edith Windsor in Windsor v. U.S. (which is now available online), argues that DOMA “impairs employer/employee relations and other business interests”:
Federal law provides to the working family many benefits and protections relating to health care, pro-tected leave, and retirement. These protections provide security and support to an employee grappling with sickness, disability, childcare, family crisis, or retirement, allowing the employee to devote more focus and attention to his work.
DOMA thwarts these employee expectations, to the direct detriment of some married employees of amici , and, by extension, of amici ourselves. As set forth below, DOMA forces amici to consider the gender of the spouses of our lawfully married employees when determining the scope and manner of benefits that may be extended to those spouses (and the chil-dren of those spouses). DOMA enforces discriminatory tax treatment of spousal retirement and health care benefits. In many other benefit-related matters,amici may incur the cost and administrative burden of “workarounds” (employer-created benefit structures attempting to compensate for the discriminatory effects of DOMA), or leave the married workforce in separate castes.
Having states recognizing same-sex marriages while the Federal government willfully ignores those legal marriage produces a costly burden to employers:
These dual regimes have spawned an industry of costly compliance specialists. Some amici have had to pay vendors to reprogram benefits and payroll systems, to add coding to reconcile different tax and benefit treatments, to reconfigure at every benefit and coverage level, and to revisit all of these modifications with every change in tax or ERISA laws for potential DOMA impact. Attorneys and ERISA advisors must be consulted. Human resources, benefits,and payroll personnel must be trained and retrained as tax or ERISA laws change. Plan documents, enrollment forms, and administrative procedures must be scoured for the word “spouse,” and amendments and disclosures drafted to try to explain the numerous implications and consequences of a given benefits decision on the personal tax situation of an employee with a same-sex spouse. Enrollment systems must be reprogrammed to account for different spousal circumstances, and linked to provider records to ensure the providers extend appropriate coverage. Benefits and human resources departments, facing questions from employees with same-sex spouses regarding workplace benefit selections and coverage, must be adequately trained and prepared to explain the disparate treatment to employees who may later realize (perhaps too late) that their benefits choices and decisions carried unanticipated and significant financial implications. The complexity and uncertainty saps critical time, focus, and energy from the human resources and benefits administration function.
The second part of the brief goes the heart of the matter, that DOMA forces employers to “become the face of its mandate that two separate castes of married persons be identified and separately treated.”:
In the modern workplace, the employer becomes the face of DOMA’s discriminatory treatment, and is placed in the role of intrusive inquisitor, imputer of taxable income, and withholder of benefits. The employer is thus forced by DOMA to participate in the injury of its own workforce morale. Yale University’s error in administering DOMA, and its implementation of unexpected tax withholding against employees married to same-sex spouses in 2011, cast the university as the antagonist to its own employees. Many amici, as employers, provide certain workarounds that attempt to address some of the disparate treatment of same-sex couples that DOMA requires. Many amici that are cities and counties have gone even farther, making substantial efforts to prevent discrimination against same-sex couples, up to and including passing anti-discrimination ordinances and amending city charters to outlaw discrimination against same-sex couples. Administering and implementing DOMA subverts efforts to eliminate obstacles to full legal recognition for employees who have lawfully entered into committed relationships with persons of the same sex.
…For many employers, DOMA does violence to the morale of the institution itself. Like other persons, legal and natural, amici are motivated by core principles. As of December 2012, 88% of Fortune 500 companies provided nondiscrimination protection for their gay and lesbian employees. …These principles spring from hard experience. Our organizations are engaged in national and international competition -— for talent, customers, and business. That competition demands teamwork, and teamwork thrives when the organization minimizes distracting differences, and focuses on a common mission. DOMA’s core mandate -— that we single out some of our married colleagues and treat them as a lesser class —- upsets this imperative.
Our principles are not platitudes. Our mission statements are not simply plaques in the lobby. Statements of principle are our agenda for success: born of experience, tested in laboratory, factory, and office, attuned to competition. Our principles reflect, in the truest sense, our business judgment. By force of law, DOMA rescinds that judgment and directs that we renounce these principles or, worse yet, betray them.
Earlier today, it was announced that more than sixty businesses have submitted a brief to the U.S. Supreme Court urging it to declare California’s Prop 8 unconstitutional. While I haven’t been able to find the full text of that brief, it appears that at least some of the arguments made there are repeated here. That brief argued that Prop 8 “leave(s) companies in the untenable position of being compelled implicitly to endorse the second-class status to which their gay and lesbian employees, clients, customers, and business associates are relegated. …Until the law no longer relegates same-sex couples to second-class status as inferior “domestic partnerships,” our adherence to the law compels us to abide by a distinction that stigmatizes and dehumanizes gay men and lesbians.”
Signatories to the Windsor brief includes many of America’s top companies and brands, including Aetna, Alaska Airlines, Amazon.com, AIG, Apple, A|X Armani Exchange, BNY Mellon, Bankers Trust, BlackRock, Caesars Entertainment, CBS, Cisco, Citigroup, The Corcoran Group, Coupons.com, Deutche Bank, eBay, Earnst & Young, Facebook, Goldman Sachs, Google, Horizon Air, Intel, Intuit, JetBlue, the Jim Henson Company, Johnson & Johnson, Levi Strauss, Liberty Mutual, Marriot International, Mars, McGraw-Hill, Microsoft, Moody’s, Morgan Stanley, New York Life, Nike, Oracle, Orbitz, Pfizer, Qualcomm, REI, salesforce.com, Starbucks, Thomson Reuters, Twitter, Viacom, Walt Disney, and Xerox. That is just a short list of the big names. There are about 300 more. I look forward to the American Family Association’s next boycott announcement.
Google Celebrates Freddie Mercury’s Birthday
September 5th, 2011
As I noted in my personal recollection in today’s Daily Agenda, today is Queen frontman Freddie Mercury’s 65th birthday. It’s Labor Day in the United States, so Google is displaying only a discrete American Flag at the bottom of the U.S. edition of Google’s home page. But go to google.co.uk, Google’s search page for Britain where September 5, 2011 is otherwise known as “Monday,” and the page looks rather different. Clicking the Google Doodle plays this video:
Google to compensate for “Gay Health Insurance Tax”
July 1st, 2010
Suppose Joe and Susan are married. Joe has a job with great benefits and Susan works part time as a freelance artist so they take advantage of Joe’s health plan to cover Susan and their two children. The company pays the premiums and everyone is happy.
But if Joe is Janet, the rules change. Janet works at a great company which does not discriminate between gay and straight couples. It recognizes her marriage to Susan and provides health coverage to Susan and their two children just as it would if Janet were Joe.
But now the federal government pops its head in to object. For tax purposes, family benefits are not considered part of your taxable income. Unless you are a same sex family, in which case the federal government says that you are not a family at all. If you are a same-sex couple then you have to pay the Gay Health Insurance Tax.
“Susan is not a relative,” they say. “She’s just some random stranger who is being covered by your health plan. And these kids are her children, not yours.” So, as Susan is not Janet’s spouse according to federal law, they do not treat the health insurance premiums which cover Susan and the kids as family benefits.
“This is income,” they say. Just as any other amount taken from your check and paid to a third party (say a creditor with a lien) is considered part of your income, so too are these insurance premiums paid to cover this other random non-spouse person considered part of your income.
And so they tax Janet. Assuming that Janet is in the 35% tax bracket, her wonderful company may give her coverage for Susan for which they pay premiums of $500 per month, but the IRS gives her a tax bill for $175. So while Joe and Janet may do the same exact work and receive the same exact pay, Joe takes home an extra $2,100 per year.
Now some companies are seeing this as unfair. They support the idea of equal pay for equal work and are stepping in to make up the difference. The latest (and largest) is Google. (NY Times)
On Thursday, Google is going to begin covering a cost that gay and lesbian employees must pay when their partners receive domestic partner health benefits, largely to compensate them for an extra tax that heterosexual married couples do not pay. The increase will be retroactive to the beginning of the year.
This is great news for Google’s gay workforce. But it is also good news for those who work at other companies, especially those with whom Google competes for skilled high tech employees.
But given the competitive nature of the benefits culture in Silicon Valley, where companies often offer extra perks to attract top employees, Google’s decision could lead to policy reviews, experts said.
“It could have a ripple effect, prompting other employers, and particularly employers in the same industry, to take a look at their own benefits package and see whether it would be appropriate to extend those benefits,” said Kathleen Murray, principal in the health and benefits consulting business in San Francisco for Mercer, the consulting firm. “When you have a high-profile company doing anything, that tends to get into the mind of the culture, and it can have a more diffuse effect.”
And as more companies begin to recognize the special gay health insurance tax levied specifically at gay couples, the more the public becomes aware of this bizarre inequality and the easier it becomes to get it changed. A provision which would eliminate the tax was at one point part of the health care reform but did not make it to the final bill.
It seems that some of our representatives believe that gay people should pay higher taxes than heterosexuals. Ironically, they are the ones that you often hear calling for tax cuts… just not for us.
Offensive Google App Removed, Developer Apologizes
February 20th, 2009
Hello Everyone. We just want to let you know that we have removed “Straight?” application. We really do not want to offense or humiliate anyone. We are saying “Sorry” to people who took this app seriously, although it was done just for fun, without any intention to hurt the feelings.
[Hat tip: Jason Dabrowski]
Google Defends Offensive Anti-Gay Phone App
February 19th, 2009
With Google entering the mobile phone marketplace with its new G1, powered by Google’s Android Software, they also have opened an online apps store called the Android Marketplace. similar to Apples’s iTunes app store for the iPhone and iPod Touch, the Android Store is loaded with tons of utilities, games, and other applications, many of them free. There is also a way in which users can flag an app as being offensive.
Hey guys, do you want to test your friends and see if they are straight or not? Just ask them to put their finger on a screen and our application will tell the truth. You can even do it yourself…just try it!!! NOTICE: don’t be serious – it’s just for FUN!!!”
Here’s how it works. You start the app and ask someone to place their finger on the phone. The app ostensibly scans their fingerprint and comes up with one of two possible results. One result could be this:
Or the other result could be this:
Calling someone gay as ridicule — a “sorry sweetie” ridicule at that — is not only offensive, it perpetuates the view that being gay is a negative thing. If you draw the affirming, high-fiving ”you are the man” response, you’ve won the game. But with “sorry sweetie,” the app offers condolences for losing the game — losing, in this case, means being gay. It’s just another variation on the “that’s so gay” slur.
- We are very interested in seeing the discussions and issues regarding Android Market either taking place here or in our specific Android Market forum (which I am linking below).
- Though this is an unmoderated forum, we are monitoring and around. Our goal is to build a community where users can get and give answers to others interested in our products. You will see us Googlers chiming in on threads where we can be of more help.
- We definitely monitor the apps flagged on Android Market and take down apps that promote hate speech.
Regarding this specific case, though the app may be offensive to some, it is not in violation. Stereotypes in and of themselves do not constitute hate against a group.
This app has nothing to do with stereotypes and everything to do with perpetuating a slur, and possibly leading to taunting and bullying. Let’s see how well this app goes over in high school gymnasiums around the country. A lot of bullying has been defended as “just a little fun” before. Is that really Google’s position?
Update: The app’s developer has removed the app from the Android Marketplace and apologized.
June 27th, 2008
Do you see the rainbow stripe between the sponsored ads and the search results? And it’s context sensitive. Search for “gay Paris,” and the stripe’s not there. Very clever!