Gay Marriage

Google Invites Lawsuit to Make a Statement in Favor of Gay Marriage

Google will begin reimbursing its employees in civil domestic partnerships for taxes they pay on health insurance benefits for their domestic partners.  The problematic part: they will only be reimbursing the taxes paid by same-sex domestic partners (and not opposite-sex domestic partners, though that is a legal status in California) because they say opposite-sex domestic partners could get married instead.

Under Federal law, employees do not have to pay tax on health benefits for their spouse or children. For domestic partners, however, health benefits are added to wages and become taxable. Some states also tax benefits, but California does not tax domestic partner benefits if the union is registered with the secretary of state.

It’s possible that Google’s decision to only reimburse the taxes paid on benefits for same-sex domestic partners (and not opposite-sex domestic partners) could lead to a discrimination lawsuit on the basis of sexual orientation.  I wonder whether this curious decision to discriminate on the type of domestic partnership has to do with Google not wanting to pay more in benefits than is necessary while still appearing to be a supporter of gay rights.  Or, it could just be a brazen political statement in favor of gay marriage!  I suspect the latter.

Google is one of only a few employers that pays the employment taxes on benefits offered to same-sex domestic partners. The Bill and Melinda Gates Foundation has been reimbursing domestic partners (regardless of sexual orientation) for several years. For the last three years, Klimpton Hotels and Restaurants of San Francisco has also been reimbursing taxes for same- and opposite-sex domestic partners.

The main distinction between Google and other employers is that Google is the only one who purposefully states that sexual orientation is a specific criteria for this increase in pay.  It may be that the tax code discriminates against domestic partners over spouses — resulting in a de facto sexual orientation discrimination — but one discrimination does not make another discrimination lawful.

My personal feeling is that Google should be allowed to pay more or less wages in any way that it wants.  If they are discriminatory in their pay practices, they’ll lose their best opposite-sex domestic partner employees to competitors (we may have high unemployment, but we still seriously lack quality engineers in America).  In other words, the market should dictate and Google should be free to act in accordance with market pressures or its own ethos.  Unfortunately, that is not the law and to set a pay criteria based specifically on sexual orientation straight-up invites a lawsuit.  (There has to be a brave opposite-sex domestic partner couple that steps forward first, but someone will do it eventually.)

If I were Google’s lawyer (call me), I probably would have advised them to just extend it to all domestic partners.  That would accomplish the goal of making the work place favorable to gay employees without increasing the cost that much.  (While I don’t have hard numbers, it seems likely that there really aren’t that many opposite sex domestic partners in comparison.)  Such a policy is also based on legal status (not protected by discrimination laws) and not on sexual orientation (protected by discrimination laws).  Since all adults, regardless of their sexual status, are free to join civil unions, the policy would not be discriminatory on its face.  As it currently stands, it is.

In addition, my hypothetical policy, to the extent that it is based on political motives, is also philosophically consistent: the argument in favor of gay marriage is that it is a private affair between two people, that the government should get out of it and allow consenting adults the same rights and privileges regardless of their sexual orientation, and that marriage is essentially a religious concept, whereas a civil union is an economic contract.  Those arguments ask the government — and Google — to be genuinely blind to sexual orientation altogether.  Isn’t that really what they are aiming for?

In any event, despite Google’s good intentions, it is not a legal defense to an illegal policy that they are “righting a wrong” imposed by the law or society against gay marriage.  The discrimination laws apply to them on an equal basis as to other businesses who discriminate in pay based on race, gender, color or creed — or sexual orientation, whether straight, gay, bisexual or transgender.