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Married same-sex couples denied health care benefits by employers
by Gretchen Rachel Hammond
2015-04-09

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A March 2014 release from the U.S. Department of Health and Human Services pertaining to health care benefits for same-sex couples under the Affordable Care Act stated that beginning in 2015 "if an insurance company offers coverage to opposite-sex spouses, it cannot choose to deny that coverage to same-sex spouses. In other words, insurance companies will not be permitted to discriminate against married same-sex couples when offering coverage."

According to the Illinois Department of Insurance, the Illinois 2011 Civil Union Act states "Health insurance policies and HMO contracts issued in Illinois must offer coverage to civil union couples and their families that is identical to the coverage offered to married couples and their families."

However the issue is far more complicated than it would appear. Two complaints were recently filed by the ACLU of Illinois with the Illinois Department of Human Rights on behalf of two individuals who have been denied health insurance benefits by their employers for their same-sex spouses.

Zuyin Jimenez ( 26 ) has been a laborer since 2014—a job she had wanted ever since she was a child assisting her father during his work in the construction trade. She is a member of Local 225 of the Laborer's International Union of North America. Her wife Laura Luna ( 25 ) is currently a student at the Richard J. Daley College. She hopes to become a Registered Nurse and has an eight-year-old daughter from a prior relationship who lives with the couple at the home of Jimenez's parents near Midway airport. They are currently looking for a place of their own.

Jimenez and Luna met through mutual friends in 2008 and initially began conversing via Myspace. "We were just texting," Jimenez told Windy City Times. "Then we went on a date to the movies and it was the first time we saw each other. After a few months she was living with me. I just couldn't stay away [from Laura]. We just had to be together."

"I guess it was love at first sight," Luna added with a blush.

The young couple were married in a church service in November 2013. Once Illinois began issuing marriage licenses to same-sex couples, they legally cemented their union via a court-house ceremony in October last year. Jimenez said that her foreman was more than happy to serve as a witness. Like many of her co-workers he has been completely supportive of her.

By then, Jimenez had racked up enough work hours to qualify for health-insurance benefits through Local 225. Those benefits are provided by The Chicago Laborers' Pension and Welfare Fund.

The complaint filed by the ACLU states that the "union exercises control over health insurance administered by the Fund through collective bargaining with respect to employee benefits and through appointment of persons as Trustees to the Fund."

According to the Fund's website "The millions of dollars which have been paid on behalf of insured participants and their dependents over the years, combined with excellent benefits that the Plan offers you and your family toward the high cost of sickness and disability is testimony that the Trustees have succeeded in their goal."

"We were really excited," Luna said. "There is a guy and a girl couple who are in the same local as Zurin and they said 'we have really great benefits so you guys should enroll'."

"The laborers have the best insurance," Jimenez agreed. "There are no co-pays. They even pay for Lasik [eye surgeries]."

The plan offers its medical benefits via Blue Cross Blue Shield of Illinois—the parent company of which states on its website that a "same sex spouse legally married to an eligible employee is eligible for coverage."

"I filled out the paperwork and put Laura as my beneficiary and dependent," Jimenez explained.

"Everything was going fine," Luna added. "They were responding with 'you need to send us this and that'."

Jimenez said that she initially hadn't submitted a marriage license to the Fund until she received a November 6 request for her to do so. The request was addressed to "Mr. Jimenez."

She added that the license she submitted listed the couple as "wife and wife."

The response she promptly received from the Fund was as impersonal as it was shocking. It was a policy booklet with a clause that had been highlighted for them. "[C]ommon law spouses and same sex partners are not eligible dependents under the Plan," it read.

Jimenez got on the phone. A representative from the Fund bluntly told her that it was a "private company that will not recognize marriages between people of the same-sex."

"She was like 'what do you want me to do about it? It's a private company'," Jimenez said. "But I didn't need to do research to know that it is not legal here for them to deny her."

Jimenez stated that in a letter to the Fund on November 24. "I said that if they didn't change their policy by December 31, 2014 I would be seeking legal action," she recalled.

The response from the Fund's lawyer amounted to a threat. "They said 'if you do this then all the attorney fees that we use will be upon you'," Jimenez said.

The Fund's response had left the couple in a state of shock and Luna completely uninsured. She receives no health benefits through her college. She noted that she is not eligible for government assistance because of Jimenez's salary. "If I go to the doctor or the hospital I have to pay," Luna said. "They took out my gall bladder a long time ago and I still have pain but I can't do anything about it."

Even more concerning are the materials Jimenez uses during her day-to-day tasks. "We deal with lead, asbestos and things like that," Jimenez said.

"If anything happened to her I would receive no benefits in terms of life insurance," Luna added. "I would have nothing."

At the urging of colleagues belonging to a different local union, Jimenez found some legal help.

On March 5, 2015 the ACLU of Illinois filed a complaint with the Illinois Department of Human Rights Equal Employment Opportunity Commission ( EEOC ) on behalf of Jimenez against Local 225 of the Laborer's International Union of North America

The complaint alleged discrimination against Jimenez because of her "sex and orientation in violation of Title VII of the federal Civil Rights Act of 1964 and the Illinois Human Rights Act."

John Knight is the Director of the LGBT and HIV Project at the ACLU of Illinois. "It's rather a new issue," he told Windy City Times. "It's going to have to be addressed now. There is a law in-place called ERISA [Employment Retirement Income Security Act of 1974] which preempts the local non-discrimination laws like we have in Illinois with respect to certain employers. We are really at the front end of the courts saying that discrimination against same-sex-couples is sex discrimination. There are a number of courts that are finding that it is but we don't have a court saying that clearly in the federal circuit."

"We're talking about private employers," he added. "So the constitutional principles established in [same-sex] marriage cases don't necessarily say how Title VII should be interpreted. So we have to look to a federal statute to protect us here. I think many employers are voluntarily providing coverage and I hope that continues but I suspect some employers are going to say no. If the employers or unions continue to resist, then we'll be in court."

Fortunately for Jimenez and Lana they won't have to go that far. On April 9, Windy City Times received a call from ACLU of Illinois Director of Communications and Public Policy Edwin Yohnka. Jimenez had just been informed that her wife would be eligible for coverage backdated to March 1, 2015.

It was a surprising turn of events. When Windy City Times contacted The Chicago Laborers' Pension and Welfare Fund earlier in the day, a representative stated that they had no knowledge of the filing and so no comment.

"Interesting," Yohnka said. "One of the things that we'll be doing is making sure it is a policy change and not just in the case of this couple. We also believe they should have been covered as of last fall when [Jimenez] was eligible."

Ensuring that no one else has to experience the emotional rollercoaster, disillusionment and fear that they have suffered since October is important to both Jimenez and Luna.

"To me it's the big picture," Jimenez said. "I wouldn't want anybody else to go through it. We want to bring it in the open so everyone can see not to let people push you around."

"It's a fight for everybody," Luna agreed. "If a married guy and a girl can get insurance, we can get it too. We're no different."

On March 30 2015, the ACLU of Illinois filed a complaint on behalf of Mr. David Farrey against the E.H. Baare Corporation based in Anderson Indiana. Much like the Jimenez case, the complaint alleges that the company rejected health insurance benefits for his same-sex spouse Tyler.

"It depends a lot on what kind of insurance you have," Knight said. "If you are employed by a company that is self-insured where the employer takes on the risk themselves then you've got this ERISA issue. You can't go to a state agency that enforces non-discrimination. You have to use a federal remedy like Title VII. I think ultimately it's going to be some period of time before employers or people making employment decisions fully accept gay people and their marriages as equal."

The ACLU of Illinois urges anyone who may be experiencing similar issues to contact them immediately.

For more about the ACLU of Illinois, please visit www.aclu-il.org .


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