A unanimous panel of the New York Appellate Division, 2nd Department, ruled on February 8 that the Board of Cooperative Educational Services (BOCES) in Northern Westchester County did not violate the County's Human Rights Ordinance when they extended domestic partnership benefits to same-sex partners of county employees but refused to extend the benefits to the unmarried different-sex partner of an employee. Reversing a decision by the County's Human Rights Commission in Matter of Putnam/Northern Westchester Board of Cooperative Educational Services v. Westchester County Human Rights Commission, 2011 N.Y. Slip Op. 01030, 2011 Westlaw 452985, the court found that the petitioner's action constituted neither marital status nor sexual orientation discrimination.
The complainant, Kathe McBride, is described by the court as a teacher in the Croton Harmon Union Free School District. "She has lived with a male partner in a romantic relationship for more than 30 years," the court relates. "They have never married. They registered their domestic partnership with Westchester County in 2006." School district employees receive health care benefits through a consortium arrangement administered by the petitioner Northern Westchester BOCES, which voted in 2005 to provide dependent health benefits to same-sex domestic partners of employees, effective July 1, 2005.
The complainant sought benefits for her partner on August 11, 2005, but the Board turned down her application on November 23, 2005, on the ground that the new policy covered only same-sex partners. Complainant then filed her charge with the County Human Rights Commission, alleging discrimination based on sexual orientation and marital status in violation of the County's Human Rights Law. An Administrative Law Judge ruled in her favor, recommending a cease and desist order against BOCES and the award of $24,178 in damages. The Human Rights Commission accepted the ALJ's ruling and recommended order.
BOCES sought judicial review in an Article 78 proceeding in Westchester County Supreme Court, which court transferred the proceeding directly to the Appellate Division, which reversed.
"The complainant failed to meet her burden of demonstrating a prima facie case of discrimination based upon marital status," wrote the court, "because eligibility for the domestic partner health care benefits for which she applied 'does not turn on the marital status' of the employee," citing, among other things, Levin v. Yeshiva Univ., 96 NY2d 484, in which the Court of Appeals held that Yeshiva University engaged in marital status discrimination by refusing to allow a lesbian medical student to have her same-sex partner live with her in married student housing near the University's medical school. "Indeed, the individuals whom the complainant claims she was treated differently from with respect to the provision of domestic partner health care benefits have the same marital status as her."
But the court found that the complaint stated a prima facie case of sexual orientation discrimination, thus shifting the burden to BOCES "to set forth a legitimate, nondiscriminatory reason for the decision to extend domestic partner benefits only to same sex couples." The court found that this burden was met, however, because "same-sex domestic partners cannot obtain benefits offered by the petitioners to employees' spouses by becoming lawfully married in this State." The court noted that the policy BOCES adopted states "that it may be rescinded in the event that same-sex marriage becomes legal in the member's state of residence."
The court rejected the complainant's argument that since same-sex couples can go to other jurisdictions to marry this basis of distinction is no longer valid. "Contrary to the respondents' contentions," the court concluded, "the ability of same-sex couples to be lawfully married in certain other jurisdictions does not undermine the legitimate, nondiscriminatory basis for the petitioners' decision to offer benefits to same-sex couples, that is, the impediment to marrying in this State."
One wonders how up-to-date the court's understanding is of the current situation? At the time the complaint was filed with the Commission in this case, same-sex couples from New York could marry in Canada but nowhere else on the North American continent. (At the time, Massachusetts allowed same-sex couples to marry, but only if they were residents of the state.) Since then, it has become possible for same-sex couples resident in New York to marry in Vermont, New Hampshire, Massachusetts, Connecticut, Iowa, and the District of Columbia, and for a period of about half a year during 2008 in California, as well as a few places south of the border, and for the past few years New York courts and many executive branch officials have taken the position that such marriages are legally valid and recognized in New York. Perhaps it would be premature for BOCES to rescind its policy, but the factual underpinnings from 2006 seem less persuasive today, as it is a relatively easy matter for same-sex couples employed in Westchester County to cross the border to Connecticut and get married there, returning to have their marriages recognized and be qualified for benefits by their Westchester County public employer.