Frequently, I make the comment at work, "what if I walk outside and get hit by a bus and die?" I don't say this to be morbid or funny (if you're so inclined). I say this because I want my office to be able to operate without me. I want there to be systems in place that ensure I'm easy to replace. Strange as it may sound, our goal is to prepare for my death.
In my personal life, it's not too different. My partner and I are as legally bound and protected as we can be in the result of one of our deaths. Our money and our property are set to transfer to the other. We also have power of attorney in the event that it's needed.
I would also be able to take time off to care for him if he was sick. But knowing his company's benefit package, it's unlikely he would be able to do the same for me. Moreover, the Commonwealth of Pennsylvania offers no protection for either of us if a hospital decides to deny visitation rights.
Even though there are work-arounds for many of these situations, it still is disconcerting that we lack certain legal protections that opposite-sex couples enjoy.
The Darker Side Of Town*
Occasionally, I read about a legal case that offers some hope. Even in cases where the plaintiff loses, such as Kimberly Copeland v. Mid-Michigan Regional Medical Center, I love the fact that she challenged the federal laws of Family Medical Leave Act (FMLA) and the Americans with Disability Act (ADA) bringing the issues of inequity to the forefront.
In short, Copeland's same-sex partner, Annie Schuell was diagnosed with terminal brain cancer in October 2007. Schuell worked for the same employer as Copeland. Their employer was aware of their relationship and of Schuell's illness. Despite this, Copeland was denied intermittent leave under the FMLA.
Copeland subsequently applied for FMLA leave for her own depression due to the situation. This was denied due to the lack of a completed doctor's certification form. Additionally, after a series of minor disciplinary actions between February and May of 2009, and a more serious one in July, 2009 which Copeland claimed to be a misunderstanding of the rules, Copeland's employment was terminated. All five decision-makers involved in the termination were aware of Copeland's relationship with Buell and of Buell's illness.
Copeland filed a complaint in February, 2011 claiming her employer violated her FMLA rights by failing to provide leave, and for discriminating against her because of her association with a disabled person.
Copeland's argument under FMLA was due to the employer's handbook offering FMLA for sick family members. Of course to Copeland, Buell was a family member because they were partnered since February, 1990. Plus, in May, 2000 Buell was demoted because Buell was Copeland's supervisor which was a violation of the employer's "Employment of Family Members" policy. But despite the employer handbook and policies, the federal law defines family members as a spouse, child, or parent. Hence she lost this argument quickly.
Under the ADA though, her argument was based on the distraction theory of associational discrimination. Essentially, the discrimination is an assumption by the employer that an employee is inattentive at work because of the disability of a person with whom they are associated. In Copeland's case, she claimed that the employer deliberately created a paper trail of her poor performance after Buell's diagnosis in order to cover up the real reason for termination. Copeland was unable to show the inference and this was also dismissed.
Another Game To Play*
After reading the summary which can be found here, I recognize there is a valid paper trail leading to termination for workplace violations. But I wonder though, if Copeland had been in a opposite-sex relationship, would the outcome have been different?
Under the FMLA, the employer has a responsibility to create an interactive process that guarantees an employee's rights aren't violated. This involves constant communication and conversation about the employee's situation and the courts have ruled in an employee's favor for violating this. In Copeland's case there is no mention or clue of an interactive process that involved her depression or stress due to her partner's illness.
But her ADA case would probably have had the same outcome if she was in an opposite-sex relationship. What is different is her supposition took a different view of unfair treatment. She claimed her discrimination was due to her homosexual relationship with a disabled person. This may seem outrageous. But considering the inequities in federal law for the LGBT community, I think it's an interesting twist to the increasing complexity of the discrimination definition under the ADA.
Now's The Time To Look*
I know this case probably had a snowball's chance. But it interests me because it draws attention to the lack of protection for LGBT partners under the FMLA. It also draws attention to what I see as a lacking of an employer's compassion for its LGBT employees. Since I don't work there, it's impossible for me to say they lack compassion. I do know in my world, only I have a compassionate employer. I can't say for sure about my partner's employer.
I know there are a lot of people who say that's the way it should be and that's the way it should stay. But I don't think it's going to be this way forever. There are more ears and eyes opening up to the reality of our world. Someday there will be equal rights for the LGBT community. The more challenges from the likes of Kimberly Copeland will ensure that.
Then that's the way it will be.
*All titles and subtitles inspired by this little Led Zepplin ditty: