This post has been updated.
Our office is considering asking City Council to join 13 or so other cities and counties in enacting an Equal Benefits Ordinance, which in this "acronymonious" world of City-speak quickly becomes shortened to EBO.
The EBO prohibits the City from entering into certain contracts or leases with an employer that discriminates in the provision of benefits between employees with domestic partners and employees with spouses. In other words, the City can't do business with a company that does not offer the same benefits to their employees with domestic partners as they do to their employees with domestic partners spouses.
In our thinking, this seems like a way to give our non-discrimination policy a level of accountability. This policy is laid out in Chapter 23 of City Code [1] and further developed in Chapter 3 [2].
To quote from this chapter, "It is unlawful to discriminate on the basis of race, religion, color, sex, marital status, familial status, national origin, age, mental or physical disability, sexual orientation or source of income in programs, activities, services, benefits, and employment whether carried out by the City of Portland, directly or through a contractor or any other entity with whom the City of Portland arranges to carry out its programs and activities except as allowed by federal law, rules and regulations."
To enforce this policy of our contractors, we require Equal Employment Opportunity certification [3]. This means, "your company must submit a form stating that it does not discriminate against any employee or applicant...Your company must also take steps to ensure equal opportunity in all aspects of employment. These aspects include, but are not limited to hiring, promotion, transfer, advertising, layoff, termination, rates of pay, training (including apprenticeship), and terms and conditions of employment."
Of course, this proposed policy has raised questions. Some have answers, and some are open for discussion, which is what we hope this post can incite. I've tried to limit them to the larger ones.
Why not limit domestic partners to only same-sex domestic partners?
This is up for debate. There is a legal precedent [4] in Tanner vs. OHSU for Oregon public institutions and agencies to formally distinguish between same-sex domestic partners and opposite-sex domestic partners in the provision of benefits. In addition, the dollar value of same-sex domestic partner health benefits is not taxable at the state level [5].
If the main premise of this ordinance is that domestic partner benefits are necessary only for those couples who cannot legally marry, then limiting the eligibility for benefits to only same-sex domestic partners would be an extension of this.
But our city's policy prohibits discrimination on the basis of marital-status. Our county's domestic partner registry makes no distinction between opposite-sex and same-sex domestic partners. City benefits make no distinction between same or opposite-sex domestic partners either. So, if the premise of this ordinance is to also comply with the City's provision barring discrimination based on marital-status, then distinguishing between domestic partners is unnecessary. What are your thoughts?
Will the EBO impose heavy financial burdens on contractors?
No. Studies consistently show that typical enrollment in domestic partner health insurance - the largest cost of fringe benefits - equals 1 to 3%, resulting in average rises in costs of benefits of less than 1%. (See the Employee Benefit Research Institute [6] - PDF)
What if a contractor doesn't offer spousal benefits?
If you do not offer spousal benefits, you do not have to offer domestic partner benefits. Analysis of other cities and counties has shown that the threat of losing spousal coverage because of the EBO is essentially nonexistent.
Doesn't this just make it harder to do business with the City?
This would be another level to the contracting process. We see no way around that. However the EBO is a tool to implement current contracting anti-discrimination policies, not a heavy compliance program. Our intent is to create a level of accountability that our contractors are indeed following through on city policies. We're committed to making this accountability as easy, and as flexible, as possible.
However, malicious or deliberate intent to mislead the City about an a contractor's efforts to provide equal benefits should not be treated lightly, thus the opportunity for disqualification and liquidated damages.
Is it easy to find DP health insurance?
For large employers with 50 or more employees, nearly all insurers offer DP health benefits. For small group coverage, it is very difficult. Sam hopes to engage local insurers in a discussion about the lack of coverage while we consider the EBO. Stay tuned.
Where can I learn more?
Portland
- Draft Ordinance [6] (PDF)
- City Contracting Requirements [7](including EEO Certification)
- City Code – Equal Opportunity [8]
- City Code - Civil Rights [9]
California
- State of California’s EBO (passed 2003/2004) overview [10]
San Francisco
- EBO Resources Page [11](Full text available here)
- EBO Five Year Report [12](2002) & Six Year Report [13] (2004)
- Court Ruling from 9th U.S. Circuit Court of Appeals [14] of July 2003
- An Evaluation of the San Francisco EBO [15] by IGLSS [16]
Minneapolis
- EBO Full Text [17] (2002)
- EBO FAQ [18]
Seattle
- EBO Resources Page [19] (Full text available here)
New York
- Council vs. Bloomberg [20] case
- Background and analysis [21] on the case
Portland Press
- Portland Mercury - Editorial [22], January 27
- Portland Tribune [23], February 18
- Portland Mercury [24], April 21
- Portland Mercury [25], July 28
- Portland Mercury [26], August 11
- Portland Mercury [27], December 8
- The Oregonian [28], December 9
- BlueOregon [29], December 9
- 365gay.com [30], December 9
- The Oregonian - Editorial [31], December 13
- Portland Mercury [32], March 23
- The Oregonian - Opinion [33], April 10
- The Oregonian [34], April 11