According to The New York Times, Google is going to begin covering a cost that gay and lesbian employees must pay when their partners receive domestic partner health benefits. This is intended to compensate these employees for an extra tax that heterosexual married couples do not pay. Employer-provided health benefits for domestic partners are counted as taxable income if the partner is not considered a dependent. The tax owed is based on the value of the partner’s coverage paid by the employer. The Tax Prof Blog explains the tax aspects here, and notes that other companies such as Cisco, Kimpton Hotels, and the Gates Foundation provide similar benefits.
While it is easy to understand why a company might adopt such a policy, is it legal? I am not aware of any cases testing the issue, but it is not too hard to mount an argument that this benefit violates the law.
Twenty-one (21) states and the District of Columbia prohibit discrimination based on sexual orientation. By way of example, California’s law prohibits discrimination “on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.” The “gross up” benefit is extra compensation and is provided based exclusively on sexual orientation. Conversely, it is denied to heterosexual employees on the same basis, their sexual orientation. This appears to be a direct violation of several states’ anti-discrimination laws.
In the Times article, Google’s vice president for “people operations” also justifies the benefit by noting that ”heterosexual couples can avoid the added tax by marrying.” The implication is that the employees who are heterosexual and single have no one but themselves to blame for any income disparity they suffer. However, this is also problematic in that California and several other states prohibit discrimination based on marital status. Moreover, the denial of extra compensation to married employees could run afoul of these provisions as well.
The “gross up” benefit provides homosexual employees a benefit in the form of extra compensation that is not provided to similarly situated heterosexual employees based on their orientation and/or marital status. I’m no plaintiff’s attorney but it seems to me that Google and other companies offering these benefits would be wise to remember my first rule of employment law — no good deed goes unpunished.
Topics/Tags
Select- Employment Law
- Labor & Employment Law
- Discrimination
- Americans with Disabilities Act
- EEOC
- Labor Law
- Pregnancy Discrimination
- Department of Labor
- Supreme Court
- Title VII
- NLRB
- Coronavirus
- Workplace Violence
- Compliance
- FLSA
- Non-Compete Agreements
- Religion Discrimination
- Department of Justice
- Reasonable Accommodation
- NLRA
- Performance Improvement Plans
- Diversity
- Department of Homeland Security
- Immigration and Customs Enforcement
- Foreign Nationals
- Immigration and Nationality Act
- National Labor Relations Board
- Wage & Hour
- Privacy
- Employee Benefits and Executive Compensation
- Federal Trade Commission
- Overtime Pay
- Artificial Intelligence
- Inclusion
- LGBTQ+
- Arbitration
- FMLA
- Workplace Accommodations
- Employment Litigation
- Litigation
- IRS
- Medical Marijuana
- Social Media
- Employer Policies
- Disability Discrimination
- Retirement
- National Labor Relations Act
- Accommodation
- Sexual Orientation Discrimination
- Race Discrimination
- Employer Handbook
- OSHA
- ERISA
- ADAAA
- Medical Cannabis Dispensaries
- Unions
- Whistleblower
- ACA
- Affordable Car Act
- Employer Rules
- United States Supreme Court
- Sexual Harassment
- Technology
- Federal Arbitration Act
- Transgender Issues
- Disability
- 401(k)
- Employment Settlement Agreements
- Sixth Circuit
- Equal Employment Opportunity Commission
- Fair Labor Standards Act
- Benefits
- Gender Identity Discrimination
- Paycheck Protection Program
- Posting Requirements
- Class Action Litigation
- Disability Law
- E-Discovery
- Evidence
- Securities Law
- Environmental Law
- Family and Medical Leave Act
- Health Savings Account
- Preventive Care Benefits
- Privacy Laws
- SECURE Act
- US Department of Labor Employee Benefits Security Administration
- Representative Election Regulations
- Healthcare Reform
- Older Workers' Benefit Protection Act (OWBPA)
- Electronically Stored Information
- Telecommuting
- Affirmative Action
- Compensable Time
- Equal Opportunity Clause
- Occupational Safety and Health Administration
- Security Screening
- E-Discovery Case Law
- Electronic Data Discovery
- ESI
- Unemployment Insurance Integrity Act
- American Medical Association
- Attendance Policy
- Return to Work
- Seniority Rights
- Classification
- Confidentiality
- Disability Leave
- Equal Pay
- Fair Minimum Wage
- Federal Minimum Wage
- Genetic Information Discrimination
- Media Policy
- Misclassification
- National Origin Discrimination
- Retaliation
- Social Media Content
- State Minimum Wage
- Wage Increase
- Antitrust
- Employment Incentives
- HIRE Act
- Social Security Tax
- Taxation
Recent Posts
- SCOTUS Lowers Bar for Reverse Discrimination Claims
- Revisiting ADA Compliance: Lessons from a Recent Court Decision
- Federal Court Strikes Down Part of EEOC Rule Requiring Accommodations for Elective Abortion Under the PWFA
- More on Equal Opportunity: Executive Order Seeks to End Disparate Impact Liability to promote Equal Opportunity
- PIP This: The Expansion of Actionable Adverse Employment Decisions in the Wake of Muldrow v. City of St. Louis
- The Independent Contractor Tug-of-War: Navigating the Latest DOL Shifts
- ICE Raids and Audits – What’s an Employer to Do
- New Online Registration Requirements for Foreign Nationals
- Workplace Violence: Are You Taking Required Steps to Protect Your Employees?
- EEOC & DOJ New Guidance on DEI-Related Discrimination: What Does it Mean for Employers?