Battle With Airlines Over Domestic Partner Benefits Continues

The city of San Francisco remains in a tense standoff with leading players in the airline industry over the city's equal benefits ordinance, which mandates that companies doing business with the city provide the same benefits to employees' domestic partners as they do to legally married spouses. The airlines are the only major business group that has sued to overturn the law, which city officials say has been a rousing success overall. The next scheduled round is an April 3 hearing on the request by Federal Express and the Air Transport Association, an industry trade group, for an injunction blocking San Francisco from enforcing the law in lease negotiations over a new FedEx cargo facility at SF International Airport, effectively extending the temporary restraining order the ATA and FedEx won last month. The ATA insists that the city is attempting to regulate the airlines in violation of federal law. "We're not opposed to domestic partner benefits; we're opposed to the city mandating them," comments ATA spokesman Dave Fuscus. "It's not because the airline industry is homophobic. We operate a national transportation system which allows airlines to operate without having to deal with conflicting local laws. Only the federal government has the right to regulate the system."San Francisco, on the other hand, says it is simply exercising its right of choice in the marketplace. "We're not trying to regulate how they do business," argues Deputy City Attorney Mark Slavin. "What we're doing is acting as a participant in the free market. As a market participant we have the right to decide who we're going to do business with." This isn't the first time the city has exercised such rights with regard to the airlines and other city contractors, but it is the first time the airline industry has fought back. As the city's legal brief notes, since the 1970s San Francisco's administrative code has "provided that city contractors must agree not to discriminate based on sexual orientation. The airlines have never objected to this term of their leases and permits." The city also notes that, contrary to the ATA's assertions, it is not trying to require compliance with the ordinance from every airline that flies into SFO, but simply those who lease facilities from the airport. The only two leases up for consideration now belong to United and FedEx. All of the others, Slavin notes, "go into the next century." What disturbs Slavin as well as Supervisors Tom Ammiano and Leslie Katz, who sponsored the ordinance, is that the ATA has based its suit in part on laws that are not specific to the airline industry, such as the Employee Retirement Income Security Act. Because of this, Slavin notes, if U.S. District Court Judge Claudia Wilken rules in the ATA's favor she could either issue a narrow decision saying that the law doesn't apply to airlines, or "she could throw the whole thing out."Fed Ex to Queers: We Don't Need YouThough Wilken could rule anytime on motions by both sides requesting a summary judgment settling the whole case in their favor, the suit may drag on for months -- and probably years if, as expected, the losing side appeals the decision. The most pressing immediate issue is the conflict with Federal Express.FedEx, the only air cargo service with a sorting facility on-site at SFO, has been negotiating with the airport over lease terms for a new building to be constructed to replace an older structure due to be demolished in March, 1999. As the original Feb. 27 deadline approached, the city offered what Slavin calls "very generous terms ... We said, 'Go ahead and sign the lease, but you don't have to comply with the ordinance, even though you've signed the lease, until the judge upholds the ordinance. If she doesn't uphold it you don't have to comply at all, but if she does uphold it you either have to comply at that point or, if you still don't want to comply, we will allow you to terminate the lease at no penalty.'"That wasn't good enough for FedEx, which wanted to be exempted from compliance through the entire appeals process, no matter how many years it takes. The city refused and FedEx and the ATA went to court, getting the temporary restraining order pending the April 3 hearing. In a Feb. 25 press release the ATA argued that to obey the law during appeals "would effectively require FedEx to waive its right to join its ATA colleagues in any appeals."That is an exaggeration, Slavin argues. "It doesn't mean they can't appeal, but separate from that they have to choose termination [of the lease] or compliance." If the company complies by offering domestic partner benefits, they might find it awkward to end them should they win an appeal. Even if FedEx signs a lease requiring equal benefits, it is not clear that the company could be held to those terms if a court overturns the ordinance.FedEx spokesman Jess Bunn echoes the ATA's line, saying, "It's the ATA's position that local laws have to come secondary to federal laws. It would be difficult if not impossible for airlines to have different regulations at every airport they fly into."But if the company is only interested in the legal principle of federal control, why doesn't it offer domestic partner benefits while continuing to appeal? Bunn declines to answer directly, repeating, "The issue is one of local versus federal law. That's what the issue is."Questioned repeatedly, Bunn flatly refused to discuss FedEx's views on domestic partner benefits. So what he would say to gay/lesbian/bi/trans consumers who are reluctant to use FedEx because of the lawsuit? "Well, that's an individual consideration," he replied. "We think we have a service that's unsurpassed. Whether people choose to use it or not, that's up to them."FedEx's defiance prompted Katz and her staff to search for an alternative carrier for the city's overnight delivery needs. The company they found, Express Services Overnight, now gets most of San Francisco's business, reports Cynthia Goldstein of the Human Rights Commission. The only major exceptions are certain art museum shipments where agreements with other museums specify a different carrier. Best of all, Katz notes, Express Services Overnight didn't need to be pressured into compliance: "They were already providing the benefits before we adopted our ordinance."The Unfriendly Skies?If FedEx's attitude toward the GLBT community seems to echo the old Saturday Night Live line about the phone company -- "we don't care; we don't have to" -- United Airlines is taking precisely the opposite approach. Despite the suit, United is trying to portray itself as a gay-friendly company that has simply been misunderstood. Whether those protestations are to be believed is a matter of fierce dispute.In February, 1997 the Board of Supervisors approved a two-year interim renewal of United's lease for airport facilities based on what Katz, Ammiano and others involved in the negotiations say was a promise to come into come into compliance by the end of those two years. That promise, Katz explains, included a pledge not to sue. "I think they're being very cagey with semantics," she says now. Since the suit was actually filed by the ATA, of which United is a member, "technically they didn't file the suit."They did agree that they would comply with whatever law was in effect when the lease was up in two years." Because the interim lease was backdated, it will need to be renewed this summer. The company promised a "good faith review" of the law, and Katz says the city's negotiators were clearly told that United intended to comply. "I was told that there was a committee, including the CEO of the company that was looking into how to implement it," she says. "Not if, but how."Katz and colleagues felt blindsided when the ATA suit was announced that May, and the Harvey Milk Lesbian and Gay Democratic Club, which had helped write the ordinance, promptly called for a boycott of United. Because the Board of Supervisors was advised of potential legal problems with a city boycott, they settled for what Katz terms "a request that people not fly them if there's an alternative."United spokesperson Mary Jo Holland won't comment on the litigation, saying "it's an ATA lawsuit," but firmly denies that the company showed bad faith. "I wasn't in the room, but what was promised at the time was a good faith review," she says. "And we are keeping that promise." The ATA suit doesn't mean United has slammed the door on domestic partner benefits, she continues. "As a company United is still reviewing its benefits package as a whole," she notes, declining to say when that review might be completed. "United has been a gay-friendly company." Though no U.S. airline yet offers domestic partner benefits, "we offer more [travel] passes to our employees than any other airline, passes that can be used by anyone you designate."But that, argues attorney and former Katz aide Geoffrey Kors, is no substitute for full domestic partner benefits. Kors, who helped draft the law, snaps, "It's really simple. If they really are supportive of the community, what is stopping them from giving the benefits that cost nothing, like bereavement leave, family medical leave -- which is unpaid -- and the same standby travel benefits given to spouses? That would cost United zero, but their answer has been, 'screw you.'"Though United has denied it, Kors and Ammiano both think the airline was a leader in the ATA's decision to sue the city. And while such corporate giants as Chevron, Exxon and Pacific Bell have complied without fuss, no major industry other than the airlines has objected. The only other lawsuits have been filed by two small firms, both backed by Pat Robertson's American Center for Law and Justice.The Best Record -- or PR Flackery?Whether the charges against United are fair or not, the ATA suit certainly gave the airline an image problem in the GLBT community. So about a month after the suit was filed United enlisted the services of a gay public relations firm, the Washington, DC-based Window Corp. And that in itself has some queer activists steaming.Since Window came on board observers have noted substantial advertising by United in the gay press and what appears to be increased sponsorship of GLBT organizations and events. Some, like the Colorado Legal Initiatives Project -- born out of the fight against Amendment 2 -- have turned down United sponsorship. In a Dec. 15 letter to the airline CLIP Exeecutive Director Julie Tolleson wrote that "to accept your offer would compromise our relationship with the gay and lesbian community and be inconsistent with CLIP's struggle for equal rights. We feel that the public interest would be much better served by United's eschewing the misguided costs involved in the San Francisco ATA lawsuit and applying them toward compliance with the San Francisco ordinance."Others, including the San Francisco-based Names Project Foundation, have accepted United funding without apparent reservation. Last September the Names Project renewed its sponsorship agreement with the airline and issued a press release expressing hope that AIDS Quilt supporters "will acknowledge this generosity by supporting these corporate sponsors." Names Project executive director Andy Ilves, who only started work in early March, says can't comment in detail yet, noting, "This is something that happened six months and two executive directors ago. I'm reviewing everything we do."Window Corp. includes some heavy hitters. Its president is William Waybourn, former managing director of the Gay and Lesbian Alliance Against Defamation and, prior to that, founder and executive director of the Gay and Lesbian Victory Fund. Also associated with the company -- listed as "senior counselor" on the firm's personnel roster -- is longtime gay activist and sometime Friend-Of-Bill David Mixnner.Activists are appalled that such movement leaders are working for a company they see as the enemy. Milk Club executive board member Jeff Sheehy fumes, "I think it's amazing that for profit someone like Mixner and Waybourn can justify selling out their own community." Calls to Waybourn were returned by Window Vice President Joel Lawson, who stressed "We're not working on the ATA suit ... What we're doing is helping them with gay and lesbian issues and help them reach out to gay and lesbian travelers intelligently and sensitively." He insisted that this is not a new initiative but simply a continuation of work United had been doing long before the benefits brouhaha.And, he said flatly, "I don't feel uncomfortable working for an airline that has the best policies regarding gay and lesbian people in the industry. United was the first to have a nondiscrimination policy including sexual orientation and the first to have computerized training of personnel relative to sexual orientation ... It's not a United suit, it's an ATA suit. Many other airlines have very bad track records. I would urge people to give credit where credit is due. I don't understand why anyone would single them out for a boycott.Objective reviewers have verified United's gay-friendly policies, Lawson added, citing the gay travel newsletter Out and About as one good source of information.But Out and About's January evaluation of the airlines' relative gay-friendliness flatly contradicts many of Lawson's assertions. According to the newsletter American Airlines, not United, was the first to add sexual orientation to its nondiscrimination policy. And far from being a leader in gay-friendly policies, United earned a "Rock Bottom" award from Out and About as recently as last July -- just about the time they hired Window Corp. to mend fences in the gay community."They realized they were in trouble," comments Out and About editor Billy Kolber-Stuart. "United had a history of not supporting its gay employees' group. The senior management was both ignorant of the issues and unwilling to really look at them. We really believe they negotiated in bad faith with the city of San Francisco and never intended to implement domestic partner benefits." Still, Kolber-Stuart acknowledges, with Window's guidance "they have come a long, long way," improving relations with both gay flyers and employees. "But there's no question that American has been the leader and continues to be the leader among U.S. airlines. United has not been the leader, but they have improved remarkably since July."News and Public RelationsThere is another angle to the Window story that some observers find troubling: Waybourn is also president of a second company, Window Media, that owns two gay newspapers, Houston Voice and Atlanta's Southern Voice, with plans to acquire papers in other cities.That worries Robert Bray, the former National Gay and Lesbian Task Force staffer now working for the Institute for Alternative Journalism, heading a project designed to build media savvy among progressive organizations. For years media critics have worried that corporate ownership of mainstream news outlets might compromise their coverage: For example, will "Dateline NBC" ever do a hard-hitting investigation of wasteful defense contractors when the network is owned by a major defense contractor, General Electric? Bray wonders if the gay press is entering the same ethical minefield. "Do you think Southern Voice and Houston Voice are ever going to run a piece on United that's critical?" Bray asks. "I do think it's possible for the press to protect the integrity of its editorial content, but in mainstream media the trend is unfortunately for that not to happen." Window Corp.'s Lawson says Bray's fears are misplaced. Window Media, he says, is "totally separate" from PR operation, despite Waybourn's role as president of both. "There is a Chinese wall between them." He notes that though Window Corp. has done PR work for America Online, Southern Voice strongly criticized AOL in a recent editorial about the Timothy McVeigh case, demonstrating the paper's independence.But the Society of Professional Journalists' Code of Ethics tells journalists to "avoid conflicts of interest, real or perceived," and Sally Lehrman, president of the San Francisco SPJ chapter notes that even the appearance of a conflict of interest can be a problem."I haven't looked into this company, so I don't know how carefully they try to guard against conflict of interest," Lehrman says, but "the situation of a PR firm owning or being a sister company to a publication that represents themselves as independent news gatherers is very troubling. Even if they try to keep themselves at arm's length it's difficult to keep their independence ... There's also the perception of conflict of interest that can harm these publications and the journalistic community as a whole.""A Raging Success"San Francisco's battle with the airlines will no doubt continue for some time, as will queer travelers' befuddlement over whether there truly are any "friendly skies" out there (see sidebar). But despite occasional carping from straight media outlets such as the Examiner, which has repeatedly argued that the city shouldn't turn down income from companies that discriminate, city officials say the ordinance has done exactly what they hoped for. As of March 5 the Human Rights Commission had tallied over 3,300 companies complying with the law, a whopping 91 percent compliance rate. As a result hundreds of thousands of employees now have access to domestic partner benefits who didn't just a year or two ago. And that, says Ammiano, is good news regardless of how the ATA lawsuit is ultimately decided. "Domestic partner equal benefits has a life of its own now, whether we have this law or not," he declares. "Businesses and corporations are seeing the advantages of having an expanded benefits package."Adds Katz, "What we have done has had an extraordinary ripple effect around the country. It's made people realize the unfairness, and the effect of that has been profound. I think we've moved the country very far forward on this issue."Sidebar OneFriendly Skies?The Good, the So-So and the Really, Really UglyThe airline and package express industries haven't exactly been leaders in GLBT-friendly business practices, but some carriers clearly have better records than others:The GoodExpress Services Overnight. So far this is the only overnight package delivery service that determined to be in compliance with San Francisco's equal benefits ordinance. Unlike more well-known carriers Federal Express, United Parcel, DHL and Emery, ESO is not a member of the Air Transport Association. Located at 600 Bryant St., San Francisco. (415)896-1100. British Airways. One of only two airlines receiving an A- grade, the highest awarded, in the 1998 Out and About survey . Provides travel and pension benefits to the employees of domestic partners. Antidiscrimination policy includes sexual orientation. Customer policies are generally good as well, but does not treat domestic partners as "immediate family" for emergency travel.1-800-247-9297.Virgin Atlantic. Also rating an A- from Out and About, Virgin Atlantic provides travel and bereavement benefits to employees with domestic partners just as to spouses and is considering extending health and insurance benefits. Strong nondiscrimination policies and training. A longtime sponsor of gay events and an early advertiser in the gay press. 1-800-862-8621.The So-SoAmerican Airlines, United Airlines, US Airways, Northwest Airlines. All rated a B from Out and About. None offer benefits for employees' domestic partners and all are ATA members. United is a boycott target for allegedly lying to San Francisco officials about its intentions regarding domestic partners, but after getting a "Rock Bottom" award last July has been cultivating the gay market with improved customer policies and sponsorship of queer events and organizations. American was the first to have nondiscrimination policies including sexual orientation, and all do now. American also gets points for actively cultivating the gay market, sponsorship of a broad list of gay groups and strongly resisting recent right-wing pressure to end those sponsorships.The Really, Really UglyFederal Express. Leading the battle against SF's benefits ordinance and apparently unconcerned about losing gay customers (see main story). Alaska Airlines. What does it take to get a grade of F from Out and About? Don't include sexual orientation in your nondiscrimination policy, don't train employees about sexual orientation or AIDS, don't support any queer organizations and don't offer bereavement travel and similar benefits to customers' domestic partners. The only airline to completely flunk the newsletter's tests.Continental Airlines. Grade: D. Starting to improve its customer policies but still hasn't added sexual orientation to its nondiscrimination policy. Some local sponsorships of gay groups but not as extensive as many competitors. Delta. Grade: D plus. Has long had a reputation as a gay-unfriendly company. For customers Delta doesn't offer spousal "Crown Room" benefits to same-sex couples and has never made any overtures to the queer community, but did recently add sexual orientation to its nondiscrimination policy. TWA. Another D from Out and About. Customers get same-sex couple spousal memberships in the "Ambassadors Club" but not bereavement fares. "Zero tolerance" antidiscrimination policy doesn't mention sexual orientation. NOTE: The full Out and About airline survey can be found on its Web site at

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