Is Your Boss in Your Bedroom? Employer Discrimination Based on Relationship Status/Practices

James Fleckenstein #cconboss CatalystCon East - March 15, 2014


  1. Thanks to significant activism by LGBT organizations and courageous individuals, tremendous strides have been made in providing equal access to employee benefits to all employees, not just heterosexual legally married couples. However, this process is far from complete. There are few if any legal protections offered to non-traditional relationships. Much of the policy-driven protections extend only to relationships that ape traditional marriage.

    Moreover, many, if not most, of these ostensibly progressive policies contain a poison pill that excludes the vast majority of the intended beneficiaries if applied in conformance with the letter of the policy. Many if not most domestic partner policies, whether applying only to same-sex partners (itself a form of invidious discrimination) or to all cohabiting partners, include the stipulation that such a partnership must be “mutually (sexually) exclusive.” Research consistently shows a significant majority of gay male relationships, and significant percentages of lesbian and opposite sex relationships (especially cohabiting relationships), are non-exclusive. Interestingly, opposite sex married swinging couples are not subjected to this jeopardy, as the corporate and governmental laws/regulations/policies applying to them simply assume exclusivity and do not require beneficiaries to certify the nature of their sexual agreements/practices.

    This session will examine this area of discrimination, its prevalence, the state of the law and regulations regarding the extension of employee benefits to those not in traditional, opposite-sex marriages, consider the arguments pro and con for a more inclusive and less intrusive approach, and discuss future activism around this issue.