New Jersey Law Includes Domestic Partnership as a Protected Class
In what only can be described as landmark legislation, the New Jersey Assembly and Senate passed the Domestic Partnership Act, Assembly Bill No. 3743 and Senate Bill No. 2820, ("DPA" and also referred in the bill as the "Family Equality Act") which creates a domestic partnership between same-sex couples and heterosexual couples over the age of 62. On January 12, 2004, Governor James McGreevey has signed the bills into law, which is to take effect in 180 days. A minority of states and commonwealths offer similar "civil unions" to same-sex couples. A notable distinction between New Jersey and the states that have similar "civil unions" is that the state legislature created this new legal status, not the courts.
Despite the fact that the bill has yet to be in effect, a recent fiscal analysis performed by the Institute for Gay and Lesbian Strategic Studies, affiliated with the UCLA School of Law (which was co-authored by a Rutgers School of Law professor), has determined that the DPA "will provide material support to many families without placing a strain on the state budget" and estimates over $61 million in fiscal savings each year largely from the avoidance of public assistance expenditures. Culling data from the Census 2000 data from New Jersey, this fiscal analysis identified 16,604 cohabitating same-sex couples and137, 714 cohabitating different-sex couples. However, the figure relating to cohabitating different-sex couples did not distinguish the number of couples over the age of 62.
Essentially, couples that form a domestic partnership shall receive certain rights similar to those traditionally afforded to heterosexual married couples, including potential exemptions from state and inheritance taxes. Much of the bill focuses on requiring healthcoverage to be provided by the state for dependants of an employee's domestic partner. Private employers will be allowed to do the same.
According to the proposed bill, a domestic partnership is created when all of the following requirements are met:
(1) Persons have a common residence;
(2) Both persons agree to be jointly responsible for each other's basic living expenses during the domestic partnership;
(3) Neither person is married in a marriage recognized by New Jersey law or member of another domestic partnership;
(4) Both persons have chosen to share each other's lives in a committed relationship of mutual caring;
(5) Both persons are at least 18 years of age;
(6) Both persons file jointly an Affidavit of Domestic Partnership;
(7) Neither person has been a partner in a domestic partnership that was terminated less than 180 days prior to the filing of the current Affidavit of Domestic Partnership, except this prohibition shall not apply if one of the partners died; and,
(8) In all cases in which a person registered a prior domestic partnership, the domestic partnership shall have been terminated in accordance with the provisions of Section 10 of this Bill.
The proposed DPA has caught the attention of employment law practitioners and human resources professionals because the bill amends various New Jersey statutes that effect New Jersey employers and employees. Specifically, the proposed DPA amends New Jersey's Law Against Discrimination ("NJLAD") to include a "domestic partnership" as a protected class.
By amending NJLAD, the DPA states that "it shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination . . . [f]or an employer because of the . . .domestic partnership status, . . .refused to hire or employ or bar or to discharge or require to retire, as justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment."
The DPA amendment to NJLAD also forbids as an unlawful employment practice "[f]or any employer or employment agency to print or circulate or cause to be printed or circulated, any statement, advertisement or publication, or to use any form of application for employment, or to make an inquiry in connection with perspective employment, which expresses, directly or indirectly, any limitation, specification or discrimination as to race, creed, color, national origin, ancestry, age, marital status, domestic partnership status, affectional or sexual orientation or sex or liability of any applicant for employment for service in the armed forces of the United States, or any intent to make any such limitation, specification or discrimination, unless based upon a bona fide occupationalqualification."
Since it is impermissible under NJLAD to inquire about a potential employee's domestic partnership status in pre-employment situations, it is not difficult to envision employment law pitfalls when a same-sex domestic partner, whose same-sex status was previously unknown to the employer, seeks benefits and suffers some alteration of the terms andconditions of the employment resulting from such disclosure. Hostile work environment, retaliation or sexual orientation discrimination may result if employers mishandle or ignore potential domestic partnership issues. As many New Jersey employers are already keenly aware, violations of NJLAD may result in an award of punitive damages and thepayment of the prevailing party's reasonable attorney's fees and costs.
Although the DPA has yet to amend New Jersey's Family Leave Act, issues will surely arise in the future for employers regarding pregnancy and other leave issues if (or when) any domestic partnership status is included.
If the DPA is passed, employers and human resources professionals should immediately consult with their attorneys to determine whether the language of its employee handbooks and policies comport with these potential significant changes in New Jersey law.
Reprinted by permission of Mercer Business, February 2004
Despite the fact that the bill has yet to be in effect, a recent fiscal analysis performed by the Institute for Gay and Lesbian Strategic Studies, affiliated with the UCLA School of Law (which was co-authored by a Rutgers School of Law professor), has determined that the DPA "will provide material support to many families without placing a strain on the state budget" and estimates over $61 million in fiscal savings each year largely from the avoidance of public assistance expenditures. Culling data from the Census 2000 data from New Jersey, this fiscal analysis identified 16,604 cohabitating same-sex couples and137, 714 cohabitating different-sex couples. However, the figure relating to cohabitating different-sex couples did not distinguish the number of couples over the age of 62.
Essentially, couples that form a domestic partnership shall receive certain rights similar to those traditionally afforded to heterosexual married couples, including potential exemptions from state and inheritance taxes. Much of the bill focuses on requiring healthcoverage to be provided by the state for dependants of an employee's domestic partner. Private employers will be allowed to do the same.
According to the proposed bill, a domestic partnership is created when all of the following requirements are met:
(1) Persons have a common residence;
(2) Both persons agree to be jointly responsible for each other's basic living expenses during the domestic partnership;
(3) Neither person is married in a marriage recognized by New Jersey law or member of another domestic partnership;
(4) Both persons have chosen to share each other's lives in a committed relationship of mutual caring;
(5) Both persons are at least 18 years of age;
(6) Both persons file jointly an Affidavit of Domestic Partnership;
(7) Neither person has been a partner in a domestic partnership that was terminated less than 180 days prior to the filing of the current Affidavit of Domestic Partnership, except this prohibition shall not apply if one of the partners died; and,
(8) In all cases in which a person registered a prior domestic partnership, the domestic partnership shall have been terminated in accordance with the provisions of Section 10 of this Bill.
The proposed DPA has caught the attention of employment law practitioners and human resources professionals because the bill amends various New Jersey statutes that effect New Jersey employers and employees. Specifically, the proposed DPA amends New Jersey's Law Against Discrimination ("NJLAD") to include a "domestic partnership" as a protected class.
By amending NJLAD, the DPA states that "it shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination . . . [f]or an employer because of the . . .domestic partnership status, . . .refused to hire or employ or bar or to discharge or require to retire, as justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment."
The DPA amendment to NJLAD also forbids as an unlawful employment practice "[f]or any employer or employment agency to print or circulate or cause to be printed or circulated, any statement, advertisement or publication, or to use any form of application for employment, or to make an inquiry in connection with perspective employment, which expresses, directly or indirectly, any limitation, specification or discrimination as to race, creed, color, national origin, ancestry, age, marital status, domestic partnership status, affectional or sexual orientation or sex or liability of any applicant for employment for service in the armed forces of the United States, or any intent to make any such limitation, specification or discrimination, unless based upon a bona fide occupationalqualification."
Since it is impermissible under NJLAD to inquire about a potential employee's domestic partnership status in pre-employment situations, it is not difficult to envision employment law pitfalls when a same-sex domestic partner, whose same-sex status was previously unknown to the employer, seeks benefits and suffers some alteration of the terms andconditions of the employment resulting from such disclosure. Hostile work environment, retaliation or sexual orientation discrimination may result if employers mishandle or ignore potential domestic partnership issues. As many New Jersey employers are already keenly aware, violations of NJLAD may result in an award of punitive damages and thepayment of the prevailing party's reasonable attorney's fees and costs.
Although the DPA has yet to amend New Jersey's Family Leave Act, issues will surely arise in the future for employers regarding pregnancy and other leave issues if (or when) any domestic partnership status is included.
If the DPA is passed, employers and human resources professionals should immediately consult with their attorneys to determine whether the language of its employee handbooks and policies comport with these potential significant changes in New Jersey law.
Reprinted by permission of Mercer Business, February 2004