Local news

Law doesn’t help gays get benefits

OLYMPIA – If Washington residents are fired from jobs or denied credit because of their sexual orientation, the state’s Human Rights Commission is there to help.

But if they can’t get benefits from private employers because of their sexual orientation, the state’s civil rights enforcement arm is basically powerless.

That’s the essence of a Friday ruling by the commission, following an investigation of one of the first claims filed under Washington’s gay civil rights law, director Marc Brenman said.

The civil rights measure protects gay, lesbian, bisexual and transgendered Washingtonians from discrimination in matters of housing, lending, employment and insurance.

Federal law, however, renders the state measure invalid in virtually all cases when it comes to health coverage and other benefits offered by private employers.

Those benefits are governed instead by the 1974 federal Employee Retirement Income Security Act, or ERISA, which supersedes state law.

“Effectively, because of the federal law, in this type of case, our hands are tied,” Brenman said.

Lawmakers expanded Washington’s anti-discrimination law last year to include sexual orientation. The law took effect in July.

The measure was aimed at protecting Washington’s gay, lesbian, bisexual and transgendered residents. But its language is broader, banning many types of discrimination based on sexual orientation.

State Sen. Ed Murray, D-Seattle, who sponsored the civil rights measure for years, said supporters always knew the measure couldn’t supersede the federal law.

He downplayed the effect of the commission’s ruling, and pointed out that workers who are not covered by ERISA, such as state employees, can still use the state law to seek benefits. “We can’t regulate the federal insurance market,” Murray said. “That would be true of any health care issue we’re talking about right now.”

Brenman said the hole in the state law’s coverage illustrates the need for federal statutes prohibiting discrimination based on sexual orientation.

Soon after the law took effect, Washingtonians began filing complaints with the Human Rights Commission.

One complaint stood out. It was filed by Sandi Scott-Moore, who worked for manufacturer Honeywell International. She claimed health insurance coverage for her male partner was unfairly denied because the unmarried couple were not the same gender. Honeywell provided the coverage for the same-sex partners of its gay and lesbian employees.

During their investigation, the Human Rights Commission’s staff found they had no jurisdiction because of the ERISA conflict.

“ERISA has one of the broadest pre-emption provisions of any federal statute ever,” said Seattle attorney Robert Guite, who specializes in ERISA cases. “Virtually all state laws that reach employee benefits are pre-empted by ERISA, regardless of their incidental application on matters that may be of interest to states.”

The federal statute doesn’t apply to government employers or certain organizations such as churches, but private employers’ benefit plans are almost universally covered by ERISA, Guite said.

Rob Ferris, a Honeywell spokesman, said company officials were happy with the decision “and believe that our policies are fully compliant with the law.”


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