The policies provided by OHSU in Tanner provided benefits only to married couples and disallowed benefits to same sex domestic partners. The Court applied the "privileges and immunities" clause of the Oregon Constitution and found that the employer's policy in effect unconstitutionally denied benefits to gay and lesbian couples since they cannot be married under Oregon law. In addition, the Court analyzed and interpreted the Oregon statutory prohibitions against sex discrimination in employment to include discrimination on the basis of sexual orientation. This is the first judicial expression in Oregon that gays and lesbians constitute a protected classification under Oregon employment law and are therefore protected by Oregon's discrimination statutes.
Even though this issue had never been determined by the Oregon courts, the defendant in the case, Oregon Heath Sciences University, did not appeal the decision of the Oregon Court of Appeals to the Oregon Supreme Court. Consequently, the decision is the law in Oregon unless or until the Oregon Supreme Court chooses to review the issue in a subsequent case, or the legislative acts to change the case result. Unless that result is modified by the legislature, or is revisited in a subsequent case by the Supreme Court, the Court of Appeals ruling will apply to most employers in Oregon. In addition, the Court's ruling creates the need for modification of employment policies and procedures by all employers.
Prior to Tanner, employers were prohibited under Oregon law from discrimination against employees based on race, color, sex, religion, marital status, national origin, disability or age. As a result of the Tanner case, sexual orientation has now been added to that list of protected classifications and will have to be included in employers' anti-discrimination policies and practices. In addition, since the court found that ORS 659.030 prohibits discrimination based on sexual orientation, and since that statute applies to both public and private employers, the ruling necessarily affects the employees of both public and private employers.
Most employers' personnel policies contain anti-discrimination provisions covering race, religion, sex, color, national origin, marital status, age and disability. Since the Court has now added sexual orientation to the list of statutorily protected classifications of personnel, employers need to review their employment policies to determine the need for revision to comply with the ruling. In reviewing such policies, employers should pay attention not only to non-discrimination policies, but also policies regarding equal employment opportunity and anti-harassment to determine whether they conflict with the Tanner decision as well. When employment policies are changed, the amendments should be published and distributed to all employees. In addition, of course, human resource administrators and other supervisors should be trained in the meaning of the case and the implementation of the amended policies.
Employers also need to immediately examine insurance benefit programs to determine whether such programs are available only to some unmarried domestic partners. The Tanner decision requires that a public employer must provide benefits to unmarried homosexual domestic partners of its employees on the same basis that it provides benefits to spouses of married employees. However, the case did not require such employers to provide benefits to the unmarried heterosexual domestic partners of its employees. This discrepancy in the holding will no doubt result in further litigation, and it is possible that the courts may find, based on Tanner, that if an employer provides benefits to unmarried homosexual partners, it must also provide benefits to unmarried heterosexual partners.
In addition, Tanner does not expressly require that a private employer must provide benefits to any domestic partners, nor does the case expressly prohibit a private employer from providing benefits to only some unmarried domestic partners. This discrepancy between public and private employers will no doubt create further litigation as well, and even though private employers were not at issue in the case, there is reason to believe that the courts would apply the same rule to private employers as to public. In any event, all employers should review their benefit policies and consult with counsel to determine whether the policies grant benefits to some but not all domestic partners, and, if so, what remedy should occur. Heath insurance underwriters and plan administrators should be adjusting their plans to conform to the Tanner decision, and domestic partner insurance benefits which comply with the decision should be readily available. One difficulty in providing insurance benefits consistent with the Tanner decision will be the establishment of criteria used to determine domestic partner status in order to prevent abuses of the new protection.
No doubt, the decision in the Tanner case will precipitate significant additional litigation to resolve the questions which the case left unanswered. Public and private employers which do not move to provide benefits in compliance with the case will be the most likely targets of such future litigation.