Jason Webster filed a complaint against Partners HealthCare when the Massachusetts-based employer refused his request to add his female partner to his health plan.  Sandi Scott-Moore filed a similar complaint against Honeywell International with the Washington Human Rights Commission.

Both cases argue that same-sex-only employee benefits plans violate state laws against sexual orientation and sex discrimination. 

More than 8,000 private employers throughout the nation offer domestic partner benefits to their employees.  Most of these plans include same-sex and opposite-sex couples.

Only one-third of these companies limit benefits to gay and lesbian couples, according to Randall Abbott.  Abbott is a senior consultant of Watson Wyatt, an employment and compensation consulting firm.

As politically appealing as these complaints in Massachusetts and Washington may be, they probably won't get very far in terms of legal soundness.  I should know the pitfalls of such claims since I was involved in coaching employees in New York and Illinois who filed similar lawsuits several years ago.

Paul Foray  filed a lawsuit against Bell Atlantic when the company refused to provide health benefits for his female partner, although such benefits would have been given if they had been a same-sex couple.  The case was originally filed in state court in New York, arguing that same-sex-only employee benefits programs were illegal under New York City's ordinance against sexual orientation discrimination and New York state law against marital status discrimination. 

Byron Cleaves filed a lawsuit in federal court against the City of Chicago because the employer took adverse action against him when he took time off from work when the father of his female partner died.  Had Cleaves and his partner been a same-sex couple, such leave would have been permitted.

Both cases were filed in 1998.  Both had a similar result -- the employers won and the cases were dismissed.

The Foray case shifted from a state to a federal judicial forum after I pointed out to Foray's attorneys that a federal law known as ERISA prohibits states from regulating the health plans of private employers.  So Foray withdrew his claim from state court and filed a federal discrimination lawsuit.

Ultimately, the federal court ruled against Foray on the ground that the first prerequisite to a claim of discrimination had not been met, namely, that someone is not receiving a benefit which is being given to another person who is "similarly situated."  According to the court, since opposite-sex couples can get married and obtain the benefit that way, but same-sex couples cannot marry, heterosexual partners and gay partners are not "similarly situated."

Cleaves tried a different approach, arguing that the City of Chicago violated federal law against sex discrimination in employment.  The court rejected the argument, concluding that the basis of the complaint was really  about marital status discrimination, a practice which is not illegal under federal civil rights laws.

Although the rulings in the Foray and Cleaves cases are not binding on civil rights agencies or courts in Massachusetts or Washington, they do suggest that heterosexual couples will have more than an uphill battle to win benefits discrimination claims under state laws and in state courts.

But the court of public opinion is another matter.  If Jason Webster and Sandi Scott-Moore can generate enough publicity about the unfair, if not illegal, employment practices where they work, they might be able to pressure the companies into broadening their benefits programs.

Even the nation's primary gay rights law firm finds fault with same-sex-only benefits programs.

"It's marital status discrimination," Jenny Pizer told the Associated Press when asked about the Scott-Moore case in Washington.  "You're telling people, in essence, they will be paid less because they can't get the same benefits," she said. Pizer is an attorney with Lambda Legal Defense and Education Fund.

In the Honeywell case, Scott-Moore can ask the company to put its money where its mouth is.  Honeywell has an entire page on its website patting itself on the back for its commitment to diversity.  

"Today’s rapidly evolving business environment requires an even more demanding definition of diversity – one that . . . becomes ever-more inclusive," the Honeywell website proclaims.

The website of Partners HealthCare also boasts about its concern for "labor force diversity."

How about these companies showing some respect for family diversity by developing a more inclusive benefits program for domestic partners?