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The Equal Benefits Ordinance

Jesse Beason

(46) Comments so far...

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 and further developed in Chapter 3.

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. 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 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.

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 - 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

California

San Francisco

Minneapolis

Seattle

New York

Portland Press

Posted by Jesse Beason on December 9, 2005
(46) Comments | Permalink | TrackBack (0)
Filed Under Equality, Front Page, Our Initiatives

Comments by site visitors

You know what, just do it Sam. Get it over with. We've all watched Portland become a haven for panhandlers, drug addicts, homeless teens and riots. You people are killing yourselves slowly by suffocating any scintilla of capitalism or free enterprise. (agressive panhandling is not free enterprise)

So please, convince the last remaining Americans and businesses in Portland to leave, rename yourselves the Netherlands-lite, and simply fence yourselves off. You can even outlaw cars. And meat.

It will be like a giant commune where everyone gets along. Well, not the drug addicts who will be stealing from you, but everyone else. Oh, not the homeless because they expect you to take care of them, but everyone else. And maybe not the gays because they are never satisfied with their "equality" so they will probably start calling you bigots unless you actually convert to homosexuality. And I'm not sure what you guys are going to do for food or money... but other than all that, it's going to be great!

Or you could come back to planet earth and realize that using governments bully pulpit to force acceptance of homosexuality is facistic and just drop this stupid idea. It's really up to you.

Posted by: Daniel | Dec 1, 2005 9:16:12 PM

That's a new requirement that would raise the city's cost of those contracts.

Have you identified where you will cut or create new revenue to pay for the added costs?

Given the current heat over major fiscal matters I'm not sure your timing is good.

Unless you cut the Tram.

Posted by: Sharon | Dec 2, 2005 12:26:03 AM

Sharon,

From the analysis fo San Francisco's EBO (in place since 1997) done by IGLSS: The experience of many large employers suggests that adding provisions for both same-sex and opposite-sex domestic partners results in a 0.5% to 3% increase in health care plan enrollment. Second, according to the U.S. Bureau of Labor Statistics, the average employer spends roughly 6% of labor costs on health care benefits for employees and family members. So, if health care coverage constitutes only 6% of a typical employers production costs, and those costs increase by 0.5% to 2.5%, the resulting change in labor cost should range between 0.03% and 0.18%. Further, if labor costs constitute half of the total cost of providing a product or service, for instance, then the company’s total cost of production would only rise 0.015% to 0.09%. However, this report maintains a more conservative estimate of a range of 0.03% to 0.18% in increased costs as the likely result of an equal benefits ordinance.

Therefore, using the experience of other employers suggests that firms would experience increased labor costs of 0.03% to 0.18%, and other studies suggest that approximately two-thirds, or 0.02% to 0.12% of those costs, would actually be passed through to the City in the form of higher prices. To put this in perspective, a company with a $10,000 contract with the City might charge $10,002 to $10,012 for the same contract after offering domestic partner benefits to its City-contract employees as a way of becoming compliant with the Equal Benefits Ordinance.

Lessons for Implementation: This potential source of higher prices for cities should only result in extremely small increases. This analysis suggests that a range of 0.02% to 0.12% is reasonable to expect. Of course, companies might use a new law as an opportunity to increase prices much more than that. Such behavior, if not justified by company-specific employment and cost data, would suggest unwarranted price inflation. Cities can protect against dishonest pricing of goods (i.e. excessive price increases represented as being related to the provision of domestic partner benefits) by educating those city employees who contract on behalf of the city. If those employees understand what kind of price increases they should expect from honest companies, and are empowered to require contractors to justify excessive higher prices with specific cost information, disproportionate pricing can be avoided.

What are your thoughts?

Posted by: Jesse | Dec 2, 2005 9:47:31 AM

Thanks Sam - This seemingly small act sends out a really powerful message that Portland is a city that does not accept discrimination and is willing to put its money where its mouth is. It should really make ALL Portlanders feel safer, knowing that their city is an advocate for equality - even bigots like "Daniel."

And if as a byproduct, this motivates people like Daniel to flee the city for greener pastures - that's just a bonus.

Posted by: Jeremy | Dec 2, 2005 10:26:53 AM

Taking the leap that Daniel is not worthy of staying in this city, perhaps with his children as well is
something we should avoid.

There is such a notion of a full plate which should come into play here.

Sam and others should work to stay focused on the enormously important items already on the plate.

The city needs fixes on critcal issues and needs leaders to resist wandering off into less prioritized action.

This tendency has led the city to where it now struggles to deal effectively with the core functions of city governance.

Focus on the basics for while.

Show the public it's possible.

Posted by: Sharon | Dec 2, 2005 11:21:13 AM

"The city needs fixes on critical issues..." "Focus on the basics for while."

Sharon, equal rights aren't critical or basic? Sounds like your family must already enjoy these rights.

Posted by: Jeremy | Dec 2, 2005 12:05:44 PM

Sharon said, "Focus on the basics for while."

It's pretty basic to me, you either treat everyone the same, or don't bother applying for city contracts. This ordinance doesn't force any business in the city to offer domestic partner benefits (DPB), just those companies that want to contract for city work, which than spends city (taxpayer) money.

I fail to see anything wrong with that as there are plenty, pleeeenty, of companies that already offer DPB and this might cause of few more businesses to equal the landscape for all their employees. In fact, I think the city should be rewarded for continuing to be progressive on this and most other fronts.

I hope you see this through!!!

Posted by: MarkDaMan | Dec 2, 2005 2:03:04 PM

If a company doing business with the city that doesn't offer DPB were then to decide not to offer any benefits to any employees would they then be in compliance with the ordinance?

Our company offers the same benefits to all our employees regardless of their marital or partnering status, but I pose this question to point out what might be an unintended consequence.

Posted by: Dave Lister | Dec 2, 2005 2:39:21 PM

Dave,

Thanks for raising this.

Of the jurisdictions we've talked to about their experience with the EBO (San Francisco, Seattle and Minneapolis) there was but one case they recalled where an employer chose to drop spousal health insurance. This employer maintained insurance for their employees. This scenario, though drastic and statistically unlikely, would indeed make a company compliant.

I believe employers tend to provide spousal benefits beyond the fact that it is the right thing to do, but also because it is a market-driven benefit that attracts and retains valuable employees.

As I spoke a little about above, there are many ways a contractor would be in compliance:

a) Offer DP and spousal benefits
b) Inform employees that DP benefits are available upon request
c) Offer benefits to neither spouses nor DPs
d) Offer no benefits to employees
c) Request a waiver on the below conditions
c) If you cannot renegotiate coverage due to enrollment periods or union bargaining, you can ask your insurer or union in writing to offer DP coverage
d) If DP coverage is not offered by any carrier

The last condition is fairly common for small businesses with few employees, as insurers right now don't offer it. See the last question in the post for more.

I hope that helps answer your questions. While our office wants to make this as easy as possible, we are also of the belief that as a participant in the marketplace, the City ought to elect to do business with a constant eye towards equality.

Posted by: Jesse | Dec 2, 2005 3:30:07 PM

Hey, I like meat. =)

Seriously, though: could we build a fence around the city - an uber-UGB, yet allow people to keep moving here, rename Portland... err, Portland? And... I like the whole outlawing car thing.

Around the world, many cities celebrate an annual 'car free day' where they do ban them. I suggest googling, as entire countries organize them - from Japan, Canada, to various European nations.

See:
http://www.uncfd.org/index2.php
or
http://www.mobilityweek-europe.org/page.php?page=information_presentation&lang=en

Of course, don't know if the city council would be so excited to legalize drugs, prostitution and gambling, but they sure would make Portland the tourist destination in the US! (we'd prob beat out good 'ol LV in the vice category)

Hopefully then small-minded bigots could be put together in a big boat and can live in the middle of the Columbia River. Portlanders could take their children on tours of the 'bigot zoo,' which could act as a major destination for the River Renaissance/boat taxi system along the Willamette River.

But meat would have to stay.

Posted by: Justin | Dec 3, 2005 9:36:06 PM

Sam,
seems like equal pay for equal work is not asking too much of businesses contracting with the city. Eveyone should get the same benefits no matter how we organize our families. That is really not the business of public agencies, thank you!

Posted by: Lenny Anderson | Dec 6, 2005 3:13:12 PM

I grew up and was taught that marrage was between a man and a woman, all you liberal bleeding hearts are changing our way of life and beliefs, you are changing Christmas to Holiday, you are taking our rights away inch by inch.
You married gays without any input from the citizens and you are going to continue doing what you want, I think we should fire all of you politicians and start again.

Posted by: Ray Rochè | Dec 7, 2005 10:08:14 AM

Ray said, "I think we should fire all of you politicians and start again."

Ray, that's why you are allowed to vote and in '04 the people spoke about the state of the local economy by electing council members and a new mayor. Obviously the majority here, at least in Portland thank God, isn't that of people who prefer to force votes on the rights of minority populations, push our young men and women into harms way usually without offering their own children first, and think their fanatical, hard line, religious beliefs have a place outside of their sanctuaries at home and in church.

This ordinance doesn't force businesses to provide equal access to employment and employment benefits to all employees in Portland, though that might not be a bad thing, it just will force those companies that choose to provide the city with services to have an equal playing field for all of their employees whether that is one million benefits or none. A simple way not to be forced into Portland's supposed "liberal agenda", don't do business with the city.

By the way, I do wish you and your family a Merry Christmas and Happy Holidays...

Posted by: MarkDaMan | Dec 7, 2005 11:11:47 AM

Dear Mark,

I believe what Lenny Anderson had to say (That is really not the business of public agencies, thank you!)

I have nothing against the gay community and I do vote every time and if my memory serves me correctly the people of Oregon did speak and the marriage issue was rebuked. If this does not give our leaders an idea of what the voters want what will?
Randy one of the dear Council Members would have smokers banned from the city if he could and probably will.

When is ok to discriminate against some and not all these frivilous matters and ask our politicians to take care of the business that really needs to be addressed.

I wish you a Merry Xmas and Happy Holidays also and by the way I served in the military for my country and didn't get a deferral (3) times.

Posted by: Ray Rochè | Dec 7, 2005 12:35:08 PM

I've always wondered about the use of "bleeding heart" as a perjorative. It seems to me that the only way one's heart wouldn't bleed is if it were made of stone. I guess that may be what conservatives prefer - to close their hearts off and not have any compassion for others; to not give a damned about anyone else other than folks that happen to be and think just like them or (maybe) those who are in their immediate family. Personally, I am glad that my heart bleeds, if having a stone heart is the alternative.

Unfortunately, when you talk about civil rights -and yes, this is a civil rights issue- the majority of the electorate is often all too quick to deny people in minorities their inalienable rights. I need not go through the litany of historical examples. Fortunately, the Consitution has something to say about the rights of individuals, regardless of what the majority believes.

As for a changing definition of marriage... The institution of marriage, and the idea of the family more broadly, has been continuously changing ever since people first tried to define it and restrict it with legalisms. It used to be that inter-racial marriage was banned; at one point there was no option of divorce; it used to be that women were considered the property of their husbands; polygamy used to be legal. The definition has changed over the ages, and it continues to.

When you get right down to it, denying gay couples the same legal rights and economic benefits of their hetero counterparts is discrimination - pure and simple.

And just because people used to get away with discriminating for a long time doesn't make it right. For God's sake, love your neighbor!

Posted by: Roland Chlapowski, policy analyst | Dec 7, 2005 2:48:11 PM

Yes, the people of Oregon voted to restrict the rights of a minority population. That doesn't make it right, but we aren't talking about the state of Oregon. We are talking locally, and you can go to the county website and realize the majority, in fact, a very large majority both in MultCo and Portland voted to allow gay marriage. So in essence, this ordinance is following the desires of local voters which is why we have locally elected leaders.

Comparing smoking with the gay civil rights issues is a bit irresponsible. If for no other reason and there are plenty, smoking harms not just the smoker but also the people around the smoker, many times a smoker walks right up to a person already resting on a park bench, restaurant patio, or TriMet stop and lights up. Studies show second hand smoke is even more dangerous than the person inhaling. However, a homosexual couple to the best of my knowledge has yet to be found to cause cancer, gum disease, or any other dangers to themselves or people that happen to be in their vicinity.

I'm glad you fought for our country. When a soldier is following the instruction of our president they are to be commended and looked upon as heros, regardless of the conflict. I have lost friends in this war and I have nothing but respect for their lives, and despite my objections to this I war, I do believe if the military didn't force me to stay in the closet or be discharged I might be serving, and dying, next to my former classmates that are still fighting to win this conflict.

But, because of discrimination, I'm not even allowed to serve my country. Marriage, ha. The ability to visit my partner in the hospital, are you kidding me, not if his family object! Even the life insurance policy I provide to him can be taken by greedy relatives.

I think in a progressive city, the city council has the responsibility to take this one small step in the effort to equal the playing field for all its residents.

Posted by: MarkDaMan | Dec 7, 2005 2:51:45 PM


EleMental . . .

A major research institution has recently announced the discovery of

the heaviest element yet known to science. The new element has

been named "Governmentium." Governmentium has 1 neutron, 12 assistant

neutrons, 75 deputy neutrons, and 11 assistant deputy

neutrons, giving it an atomic mass of 312.

These 312 particles are held together by forces called morons, which

are surrounded by vast quantities of lepton-like particles called

peons. Since Governmentium has no electrons, it is inert. However, it

can be detected, as it impedes every reaction with which it comes

into contact. A minute amount of Governmentium causes 1 reaction to

take more than 4 days to complete, when it would normally take less

than a second.

GOVERNMENTIUM has a normal 1/2-life of 4 years; it does not decay, but

instead undergoes a reorganization in which a portion of the

assistant neutrons and deputy neutrons exchange places. In fact,

Governmentium's mass will actually increase over time, since each

reorganization will cause more morons to become neutrons, forming

isodopes.

This characteristic of moron-promotion leads some scientists to believe

that Governmentium is formed whenever morons reach a certain

quantity in concentration. This hypothetical quantity is referred to as

"Critical Morass."

When catalyzed with money, Governmentium becomes Administratium - an

element which radiates just as much energy, since it has

1/2 as many peons but twice as many morons.

Posted by: Ray Rochè | Dec 7, 2005 5:26:21 PM

you okay Ray?

There's 5 minutes of my life I wont ever get back!

Posted by: MarkDaMan | Dec 8, 2005 8:39:28 AM

That was hilarious.

=)

Hope we can all get a few laughs now and then...

Posted by: Justin | Dec 9, 2005 9:37:11 AM

Roland,

I support the ordinance *but* I don't think it is right to characterize this as a civil rights issue or an "inalienable" right.

There is nothing in the Constitution that guarantees health benefits to an employee. There are many grounds upon which you can receive unequal health care benefits--for instance, you may be a part time worker, or you may have a prior condition. At my current employer, they are in the midst of reconsidering retiree health benefits, which will create a two tier system, where current employees have a particular array of health care benefits and new employees have a different array.

I don't think (and here I am on shakier ground) there is anything in the Constitution that bans a private employer from discriminating among their employees regarding benefits, except for those categories explicitly mentioned in the 14th amendment.

You may be able to capture this within the due process clause, but at this point, I don't think that sexual preference is a constitutionally protected category, or that employee benefits are an inalienable right.

I think you are on much more solid ground when you ask the much simpler question: what ethical justification do we have for providing two tier benefits , one set to those who have satisfied the legal/religious category of "marriage".

By the way, to Mark, MC voted in favor of Prop 36 59% to 41%. Not sure if that is a "very large" majority or not. IT's what it is.

Posted by: paul | Dec 9, 2005 10:13:30 AM

An important clarification, Paul:

Multnomah county voted against Constitutional Amendment 36 at 59.74%.

Posted by: Jesse | Dec 9, 2005 11:03:54 AM

thank you Jesse for getting to that before I did, and yes Paul, I consider a 59% approval of gay marriage, a deeply divided issue, a "very large" majority...even a landslide.

Posted by: MarkDaMan | Dec 9, 2005 11:30:18 AM

Paul,

Point well taken. The Supreme Court has not yet divined the presence of any explicit protections for sexual minorities in the Constitution. But I'd argue that to then make the leap and say that the Constitution does not protect this minority is wrong.

I would argue that such protections are in fact in there; that the Constitution outlines certain principles that can only *accurately* be interpreted in a way that prevents discrimination on the basis of innate, inborn characteristics (such as race, gender, and exual orientation), whether or not there has yet been a Supreme Court that has actually interpreted the document in this way. But this is an admittedly philosophical and polemical argument.

On a less abstract level, one could frame the issue of the rights of sexual minorities in terms of gender equality -as was done back when the Hawaii courts breifly legalized gay marriage in the 90's - and gender *is* an explicitly protected catergory in the Constitution. The argument goes as follows: it is only because of my gender that I am not allowed to marry this other person (of the same gender), and discriminating on the basis of gender is unjust.

In any case, I did inject into this narrow debate on domestic partner benefits the larger issue of gay rights. But, as some of the small-minded and prejudiced comments above indicate, in many people's minds this does come down to whether or not same sex couples should have the same benefits afforded to them that are afforded ton their straight counterparts. And I think that the answer to that is easy. I think that all men (and women) are created equal. End of story.

Posted by: Roland Chlapowski, policy analyst | Dec 9, 2005 11:53:25 AM

Finding a way to get more people, including children, covered under private health insurance sounds to me like leadership in action.

Peole who worry that this will increase costs are missing the point. The cost of the uninsured is already part of the public burden. And these costs are incurred at the highest possible rate -- through visits to emergency and urgent care facilities -- and it's all ultimately paid for by all of us who pay taxes.

Sam's vision merely moves the expenses to a lower cost, more systematic approach which is fully consistent with our model for how health care is provided in this country: as an employer provided benefit.

Go Sam!

Posted by: Jim | Dec 9, 2005 12:10:26 PM

"push our young men and women into harms way usually without offering their own children first"

Thats not how it works. Our armed forces are all volunteer services. You dont have to join, and nobody can make you.

Posted by: Jon | Dec 9, 2005 12:45:11 PM

This is a stupid, unnecessary ordinance. Sam Adams, the voters have told you that marriage in Oregon means one man and one woman, so quit trying to fabricate marriage where none exists.

Posted by: Cathy T. | Dec 9, 2005 12:54:08 PM

In point of fact, offering benefits to spouses or domestic partners is inherently discriminatory against single people. Benefits are not free. If married employees receive a larger benefit package than singles we no longer have a situation of equal pay for equal work.

And I write this even though I benefit from the medical package offered by my wife's employer.

Really, the only way to treat all employees equitably is to simply offer a lump sum benefit package like a cafeteria plan through which employees can spend any way they want on their own customized package of benefits. But everyone gets the same lump sum of benefit money. Then this issue goes away.

Posted by: Kent | Dec 9, 2005 2:56:45 PM

People can make and sustain a relationship without the help of government or church. Some of the most enduring commitments are private ones. It is not necessarily a public event to decide to share one's life with another. Why should any couple, gay or straight, have the same rights as a couple who acquire a set of papers?

Posted by: Tess Enroth | Dec 9, 2005 3:05:23 PM

I agree wholeheartedly with the last part of Jim's recent post: Go, Sam!

Placing restrictions on any company as a condition for doing business with the city is poor policy, period. It simply reinforces Portland's already strong image as a city that is anti-business.

Posted by: Jay | Dec 9, 2005 4:47:45 PM

If the City of Portland is willing to increase the cost of health care on private enterprise, why not go all the way. NEW MANDATE: If you don't provide full health care coverage, with ZERO EMPLOYEE contribution to the health insurance premiums, then you don't do business with the City of Portland.

If more health care coverage is better (domestic partners should be covered), then UNIVERSAL COVERAGE is best. Why let the "no benefits" employers get a free ride. Some employers pay for ALL of their employee's health care premiums, others split it 50/50, while still others provide group health insurance coverage, but the employee must pay the full premium. Why not require ALL EMPLOYERS to pay the FULL HEALTH CARE PREMIUMS. Otherwise, the cheapskates will gain a cost advantage over the (currently) company paid premiums employers.

If you're going to legislate safety-net and healthcare minimums, you might as well swing for the fences. What about all the low wage earners who can't afford their share of the premiums or thei co-pays? Guess what, Sammy-Boy: they don't all work at Wal-Mart!

Better yet, how about the City of Portland simply increases the minimum wage for all Portland Citizens to $30.00/hour. You've got 5 votes: just do it! And no layoffs without 5 years severance. Yeah. That would be cool. And I would like a company car, with a gas card. Now you're thinking.

I'm not pro-discrimination or anti-gay. I'm simply anti-Socialism. Government shouldn't tell employers what benefits they are required to offer to their employees. Employees must exercise that discretion when they choose to accept, keep, or quit their job.

Posted by: W. Bruce Anderholt II | Dec 9, 2005 5:18:34 PM

Where's the link to New York's failed attempt?

In the interests of "equal time", here's the case:

In re Council of New York v. Bloomberg, 2005 N.Y. App. Div. LEXIS 2498 (N.Y. App. Div. 2005).

I trust the costs of litigation have been properly estimated and duly budgeted. The proposed ordinance likely will not survive a state preemption challenge under Oregon law -tossup on ERISA preemption.

Surely there must be better uses for taxpayer money.

Posted by: scottr | Dec 10, 2005 12:38:48 AM

Dear Sam:

I am writing to voice my support for EBO - the Equal Benefits Ordinance. This is not only an issue of fairness; it makes good business sense.

The federal government requires that if any institution receives federal funds, then access must be granted to military recruiters. I understand that the recruitment access issue is highly controversial. Our government is saying, "if you want to have a piece of the pie, then you need to play by our rules." Even though the federal government's rules promote discrimination, everyone, of course, wants a piece of the pie.

The City of Portland is advocating for a policy that also requires those who participate voluntarily to play by our rules. Refreshingly, these rules promote equality. The City is saying, "if you want a piece of the pie that represents city funds - MY funds - then you have to play by our rules." Just like in the federal example, everyone is going to want a piece of the lucrative pie.

EBO also makes good business sense. To argue otherwise is disingenuous. Look at every country that has advanced gay equality in the past decade: Netherlands, Canada, Spain, Belgium, etc...the list goes on. Their economies are booming! The Netherlands owns a vast percentage of "American" business. (see: T.S. Reid's, "The United States of Europe: The New Superpower and the End of American Supremacy") Canada is experiencing its best economy is nearly 50 years. Spain's unemployment is way down. The bottom line is, when people make policy that reflects the value of all individuals in their society, enlightened, creative entrepreneurs flock to those societies; they don't run from them.

The Equal Benefits Ordinance, or EBO, is not only an issue of fairness - it will also make for sound economic policy.

Posted by: Thomas Winston Morgan | Dec 10, 2005 8:51:02 AM

Scott,

I've added information about the New York case to the resources. Thanks for pointing that out.

The crux of the State Supreme Court's ruling fell on state contracting laws, which would be moot in Oregon, and Federal ERISA regulations. Their ruling was in contrast to the US Court of Appeals ruling about ERISA.

Posted by: Jesse | Dec 10, 2005 1:06:31 PM

Thomas Winston Morgan III:

I infer from your post that you see a relationship between EBO passage (in Holland, Canada, Spain, and Belgium) and the subsequent decline in unemployment or increase in economic growth. Hmmmm.

Any economist will tell you that causality is very difficult to discern when trying to relate social policy to economic growth. It probably had more to do with EU integration or monetary policy that domestic partners benefits or social tolerance. The fall of the Berlin Wall (and reintegration of Europe) also produced tremendous GDP growth across Europe (and still does).

Posted by: W. Bruce Anderholt II | Dec 10, 2005 9:23:00 PM

Shall we start with the premise that the extension of a special privilege to opposite-gender couples that obtain a certificate and register it with the state is a violation of the equal privileges and immunities clause?

The extension of benefits to a distinct class comprised of same-gender couples does not eliminate the violation noted above, but only strikes out one class of persons that could raise the equal privileges and immunities argument in court.

An employee at OHSU in a Tanner-style case, even today, could seek an alternative remedy that all benefits that are accorded to married opposite gender couples should be ended, thereby vindicating equal treatment. They might seek such an alternative remedy because they want to vindicate their rights, their Lawrence-related rights, to keep their private bedroom lives private from the world.

This same alternative "remedy" could have been invoked by same-gender couples in Multnomah county if they are denied a license by the county. They could ask for such a license today, get denied, and then make their case, notwithstanding all the whoopla over M36.

There is nothing whatsoever in the equal privileges and immunities clause that dictates a judicial remedy that extends the special privilege of one class (by reason of a violation) to an additional class.

The way the ordinance is worded a staff member could freely chose to prohibit any contracting with a company that offered any partner benefits. It does not prescribe the extension of benefits. It does not forbid staff from refusing any contract with any entity that has any partner benefits, even if those benefits included same-gender partners.

An alternative pro-family measure, one that is devoid of the myopism of offering public cash for electing to make a public announcement of one's private sexual life, would be to allow higher pay based on the number of minor dependents of that employee. This would accommodate a divorced parent that pays child support. This would accommodate a divorced parent that is required to pay child support even where the child resulted from an adulterous act of their previous partner. This would accommodate gay people that are nevertheless in same-gender marriages, for whatever indescribable reason, but nevertheless carry on an outside same-gender sexual relationship.

Can a married couple choose not to avail themselves of benefits that might otherwise be offered as an employee of the city or a contractor? Surely they could, and so too could a gay couple refuse to declare it to the world.

The whole point is bonus pay not for a particular sexual preference of an individual but for their public announcement of the same. It is this "non-neutral content-based speech" which I find to be offensive to (and incompatible with) the notion of privacy that was vindicated in Lawrence.

Shall I say that the contemplated policy discriminates not on gender orientation in private sexual behavior but on the benefits from making a public announcement of the same? A public announcement that someone is "married," given that it is today only associated with opposite gender relationships that are also intimately intertwined with both sexual activity and religion, could be declared wholly irrelevant to pay for work.

Sam, or a future council member, could instruct staff to simply apply a don't ask don't tell policy across the board for all sexual and religious conduct. Except then it might interfere, at least for public employees, with certain PERS related options that are contingent upon marriage (in precisely the same way that Diann Linn's plan ran afoul of state policy). Here is some more food for thought . . . if a contractor could simply offer no partner benefits could not the city do likewise? M36 did not mandate the delivery of special privileges - - - which was an issue that was explored by a prominent civil liberties advocate. If it did then a gay-only special privilege would be equally violative, or at least also conflict with equal privileges and immunities.

Bud Clark's Expose Yourself should be the caption associated with public announcement of private sexual stuff.

Posted by: pdxlawg | Dec 10, 2005 9:27:32 PM

Jesse, I appreciate your adding the link to the NY case.

However, I disagree that public contracting laws are moot in Oregon.

See the provisions of http://www.leg.state.or.us/03orlaws/0794.pdf (now ORS 279A, 279B and 279C):

In particular:
------------------------------------
SECTION 3. Policy. It is the policy of the State of Oregon, in enacting the Public Contracting Code, that a sound and responsive public contracting system should:
(1) Simplify, clarify and modernize procurement practices so that they reflect the marketplace and industry standards.
(2) Instill public confidence through ethical and fair dealing, honesty and good faith on the part of government officials and those who do business with the government.
(3) Promote efficient use of state and local government resources, maximizing the economic investment in public contracting within this state.
(4) Clearly identify rules and policies that implement each of the legislatively mandated socioeconomic programs that overlay public contracting and accompany the expenditure of public funds.
(5) Allow impartial and open competition, protecting both the integrity of the public contracting process and the competitive nature of
public procurement. In public procurement, as set out in sections 47 to 87 of this 2003 Act, meaningful competition may be obtained by
evaluation of performance factors and other aspects of service and product quality, as well as pricing, in arriving at best value.
(6) Provide a public contracting structure that can take full advantage of evolving procurement methods as they emerge within various industries, while preserving competitive bidding as the standard for public improvement
contracts unless otherwise exempted.
______________________________________

Also:
______________________________________
SECTION 13. Affirmative action; limited
competition permitted. (1) As used in this section, “affirmative action” means a program designed
to ensure equal opportunity in
employment and business for persons otherwise disadvantaged by reason of race, color, religion, sex, national origin, age or physical or mental
disability.
(2) The provisions of the Public Contracting Code may not be construed to prohibit a contracting agency from engaging in public contracting practices designed to promote affirmative action goals, policies or programs for disadvantaged or minority groups.
(3) In carrying out the policy of affirmative action, by appropriate ordinance, resolution or
rule, a contracting agency may limit competition for a public contract for goods and services, or for any other public contract estimated to
cost $50,000 or less, to contracting entities owned or controlled by persons described in subsection (1) of this section.
_______________________________________

You'll note that price and quality are key components of the policy, and Section 13 does not contain any reference to "marital status" or "sexual orientation". Same-sex benefits cannot reasonably be viewed as "performance factors and other aspects of service and product quality."

Like in New York, the proposed ordinance likley will run afoul of the overarching policy goals of Oregon re public contracting.

As far as the ERISA challenge goes, as I said, I believe it's a toss-up. The Ninth Circuit's ruling in S.D. Myers is not the last word on the subject, as the U.S. Supeme Court only denied cert.

Again, thanks for posting the link to the New York case. Here's another link to analysis in the case:

http://www.jacksonlewis.com/legalupdates/article.cfm?aid=757

Posted by: scottr | Dec 11, 2005 3:36:11 PM

mark and jesse,
Sorry for the typo. Not intended.

But let's just make sure we are being specific. Phrases like "landslide" and "very large majority" aren't helpful. 59.74% in favor is.

Posted by: paul | Dec 11, 2005 8:45:03 PM

Maybe you'd prefer mandate, as we all know that you only have to win by 51% to have a mandate :-) So lets see too it, the people of Portland and Multnomah County have spoken and they are for equal rights for all citizens. That much is evident from the vote, and I don't think Sam is at all at odds with his electorate in presenting this ordinance.

Posted by: MarkDaMan | Dec 12, 2005 12:32:18 PM

W. Bruce -

Who let you in here? Perhaps you have the wrong impression of this blog. It's not a place for rational discussion.

Yes, Yes you are correct requiring universal health care is the logical extension of EBO - "better to best" as you say but that's not the point.

The blog is about Sam and his great ideas for our city. He has at his disposal what I have to admit is an outstanding forum for a politican.

Here the sheperd gets to promote his vision for our city to his flock and have his staff and supporters rise to discredit any opposing views. It's perfect the battle is always on his terms.

Don't get me wrong I don't think Sam's a bad guy in fact I agree with him quite often and hope his first passion is truly about making Portland better for all of us and not advancing his own career. But there is a cynic in me that does not like the spin and marketing based approach of this blog. After all I have been around long enough to become very wary of politicans.

Posted by: reality check | Dec 14, 2005 8:35:56 PM

Thanks Reality Check: that's the second compliment I've ever received in the blogosphere. And I try to be as objective as possible.

More importantly, how can the CoP continue to treat private enterprise like their own little herd of milking cows before the trickle to Vancouver and Washington/Clackamas counties becomes an exodus?

My son is going to need decent public schools and roads in 4 years: should I simply put my house on the market and leave now? The best school district in Vancouver boasts rising enrollments and lower property taxes, and I can get about 600-800 additional square feet for the same money. If I transfer to our branch office, then I'll save 10% on my income taxes too.

What's not to like?

Posted by: W. Bruce Anderholt II | Dec 14, 2005 10:41:06 PM

I am responding to the proposal for the City contractors to offer health coverage to their workers’ domestic partners; it’s on the front page of The Oregonian. I think that this is a really bad move cost wise because contractors – and governments themselves – have very limited resources. You can’t be so accommodating. You cannot demonstrate that kind of largesse and still function. Okay - - those benefits should be reserved for people who, let’s say, they’re married, their wife is pregnant, she has her baby; that’s expensive and yet it has to be covered. Now, when you have people who fool around and do stupid things and because of their vices they become, say, infected with A.I.D.S.; and then they’re like: “Oh, well I have to get myself attached to some guy that works for the City because then I’ll get this coverage.” Then it will be very expensive and you’re going to have an overload of a whole bunch of problems because of somebody’s little stupid choices and little social wish lists, which is very unfortunate for the rest of us who are trying to live honest and CLEAN lives. As for opposite sex partners they can get those benefits if they would just take that one step and get married. But, NO; we have all of this dirt and sewage in our city that someone wants to bring up to the level of honest citizens and make the contractors pay for it; and now the city is paying for it themselves? We have many thousands of homeless people around the Portland Metro area. We have many starving people - hungry people; the pantries are out of food. You put that money THERE, by God! You do that and you take care of the people who are tending to honest business in their lives with that health coverage.

Posted by: Dana | Dec 15, 2005 11:55:25 AM

I’m emailing about the City’s gay rights proposal for health insurance. I own a small business and I have gay employees and straight employees. I’d like to be able to afford to offer them health insurance. I can’t afford it, though. I’m all for gay rights. My employees think Sam Adam’s proposal is great but they also see my situation and want me to stay in business. The way I read about this in the paper is that when a business already has health insurance for its employees they can’t apply for a contract with the City unless they have health insurance available for gay couples. Does this mean a business that has no health insurance at all can get a contract regardless whether they offer any health insurance to any employees? If that’s the case I guess I’d be able to get a contract ahead of some places who only have health insurance benefits for some of their staff. Maybe it would be better if Sam came up with a way for businesses to afford health insurance first before he puts this piece of fluff up for a vote.

Posted by: Tim | Dec 15, 2005 11:57:04 AM

Tim,

The way you read it isn't quite accurate. If an employer currently offers benefits to employees' spouses, then this ordinance says that if they would like to do business on behalf of the ciy, then they need to extend those benefits equally to domestic partners.

If an employer offers benefits to only their employees, they would not be asked to change anything in their benefit program.

Posted by: Jesse | Dec 15, 2005 1:13:41 PM

If one or two roofing contractors are unwilling to bid a city job in the future (fearful of liquidated damages, or yet another inch of paperwork), are you willing to pay the winning bidder more money for the same job? I'm not suggesting there are alot of bigoted roofing contractors in the world, but as complexity increases, the pool of bidders will shrink.

If the EBO mandate increases the cost of the winning bids, can the City of Portland afford these rising costs?

Wouldn't you rather put greater emphasis on whether or not contractors provide company paid health benefits at all (many don't!). Perhaps you could award additional points to the bidders that do not require their employees to contribute to their health insurance premiums.

Posted by: W. Bruce Anderholt II | Dec 17, 2005 7:43:29 AM

Why have the regulations pertinent to non-discrimination NOT been updated to include gender identity?

Posted by: Lori | Feb 27, 2006 11:39:51 AM

Lori,

The Civil Rights chapter (see link in post) of the City Code does include it. It reads, "It is the policy of the City of Portland to eliminate discrimination based on race, religion, color, sex, marital status, familial status, national origin, age, mental or physical disability, sexual orientation, gender identity or source of income. Such discrimination poses a threat to the health, safety and general welfare of the citizens of Portland and menaces the institutions and foundation of our community."

The further sections define the policy. This is the policy that guides the Equal Employer Opportunity program, as visible following the link above to the City Contracting Requirements.

Posted by: Jesse Beason | Feb 27, 2006 1:10:08 PM

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