Agency rules state's anti-bias law doesn't apply to some benefits

OLYMPIA — If Washington residents are fired from jobs or denied credit because of their sexual orientation, the state's Human Rights Commission is there to help.

But if they can't get benefits from private employers because of their sexual orientation, the state's civil rights enforcement arm is basically powerless.

That's the essence of a Friday ruling by the commission, following an investigation of one of the first claims filed under Washington's gay civil rights law, director Marc Brenman said.

The civil rights measure protects gay, lesbian, bisexual and transgendered Washingtonians from discrimination in matters of housing, lending, employment and insurance.

Federal law, however, renders the state measure invalid in virtually all cases when it comes to health coverage and other benefits offered by private employers.

Those benefits are governed instead by the 1974 federal Employee Retirement Income Security Act, or ERISA, which supersedes state law.

Since there is no federal statute prohibiting discrimination based on sexual orientation and gender identity, the state law can't be applied when discrimination complaints about workplace benefits are based on those factors, Brenman said.

"Effectively, because of the federal law, in this type of case, our hands are tied," he said.

Lawmakers expanded Washington's anti-discrimination law last year to include sexual orientation, after nearly 30 years of failed attempts by gay-rights advocates. It was quickly signed into law by Gov. Chris Gregoire and took effect in July.

The measure was aimed at protecting Washington's gay, lesbian, bisexual and transgendered residents. But its language is broader, banning many types of discrimination based on sexual orientation.

State Sen. Ed Murray, D-Seattle, who sponsored the civil rights measure for years, said supporters always knew the measure couldn't supersede the federal law.

He downplayed the effect of the commission's ruling, and pointed out that workers who are not covered by ERISA, such as state employees, can still use the state law to seek benefits they believe they are being denied because of discrimination.

"We can't regulate the federal insurance market," he said. "That would be true of any health care issue we're talking about right now."

Brenman said the hole in the state law's coverage illustrates the need for federal statutes prohibiting discrimination based on sexual orientation.

"It's not pointing up a problem with the state law," Brenman said. "It's pointing up a problem with the lack of protection on the federal level."

Soon after the law took effect, Washingtonians began filing complaints with the Human Rights Commission, which has authority to enforce the state's civil rights protections.

One complaint was filed by Sandi Scott-Moore, a Redmond-based employee of manufacturer Honeywell International, who claimed health insurance coverage for her male partner was unfairly denied because the unmarried couple were not the same gender. Honeywell provided the coverage for the same-sex partners of its gay and lesbian employees.

During their investigation, the Human Rights Commission's staff found they had no jurisdiction because of the ERISA conflict.

Robert Guite, a Seattle attorney who specializes in ERISA cases, said it's not surprising the state law would be superseded by the federal statute.

"ERISA has one of the broadest pre-emption provisions of any federal statute ever," Guite said. "Virtually all state laws that reach employee benefits are pre-empted by ERISA, regardless of their incidental application on matters that may be of interest to states."

The federal statute doesn't apply to government employers or certain organizations such as churches, but private employers' benefit plans are almost universally covered by ERISA, Guite said.

The Human Rights Commission investigation never reached the substance of Scott-Moore's complaint — that her male partner should be allowed health benefits — because officials were stopped by finding they had no jurisdiction in the matter.

A Honeywell spokesman said company officials were happy with the decision "and believe that our policies are fully compliant with the law."

"Honeywell respects all employees and has a zero-tolerance policy for workplace discrimination," said spokesman Rob Ferris, who said Scott-Moore no longer works for the company.