On December 23, 2013, in Diaz, et al. v. Brewer, Case No. 09-CV-2402 (D. Ariz. Dec. 23, 2013), the U.S. District Court for the District of Arizona issued an order certifying a class of lesbian and gay Arizona state employees who filed a lawsuit to challenge action by the Arizona Legislature to eliminate health care coverage for lesbian and gay state employees and their dependents. This is believed to be the first such class action so certified involving discrimination toward lesbian and gay employees.
Background To The Ruling
The State of Arizona has historically provided heterosexual employees with the ability to obtain certain family health benefits, including subsidized access to health care coverage for their spouses and qualifying children through health benefit plans offered by the state. In 2008, Arizona Administrative Code § R2-5-101 was amended to provide lesbian and gay state employees — for the very first time — the ability to obtain subsidized access to health care coverage for their committed same-sex partners and partners’ qualifying children if they satisfied certain criteria.
In August 2009, the Arizona House of Representatives passed H.B. 2013, which amended Ariz. Rev. Stat. § 38-651 — a statute authorizing the Department to procure health and accident coverage for State employees and their qualifying dependents. H.B. 2013 added Section O to that statute, which states: “For the purposes of this section,” the term ‘dependent’ means a spouse under the laws of this state.” The Governor of the State of Arizona, Jan Brewer, signed H.B. 2013 on September 4, 2009.
Article 30, Section 1 of the Arizona Constitution provides that “[o]nly a union of one man and one woman shall be valid or recognized as a marriage in this state,” and Ariz. Rev. Stat. § 25-101(C) further provides that “Marriage between persons of the same sex is void and prohibited.” As a result, the restriction of family coverage to a “spouse under the laws of this state” in Section O effectively eliminated family health care coverage for lesbian and gay state employees’ dependents.
Plaintiffs, a group of lesbian and gay state employees who sought health insurance coverage for their dependents, filed a class action in late 2009, seeking declaratory and injunctive relief for the discriminatory elimination of domestic partner health insurance benefits for lesbian and gay employees who have a committed same-sex life partner. Plaintiffs alleged that the elimination of these employee benefits from the compensation provided to the lesbian and gay employees was discriminatory and violated the Fourteenth Amendment to the United States Constitution pursuant to 42 U.S.C. § 1983.
In response to the lawsuit, Defendants filed a motion to dismiss in January 2010 and, while the motion to dismiss was pending, Plaintiffs filed a request for a preliminary injunction, seeking to keep partner benefits in place for lesbian and gay state employees during the pendency of the case. In June 2010, the District Court issued a preliminary injunction to maintain family benefits for all state lesbian and gay employees during the case, and denied the motion to dismiss. Defendants filed a series of appeals to the U.S. Court of Appeals for the Ninth Circuit and U.S. Supreme Court, all of which were denied.
Class Certification Order
On December 20, 2013, Plaintiffs filed an unopposed motion to certify the case as a class action pursuant to Rules 23(a) and 23(b)(2). The Court granted the motion and determined that the prerequisites for class certification were satisfied. The order is a very brief opinion. Therefore, to understand what might have supported the Court’s independent review as required under Rule 23 precedent, it is instructive to analyze Plaintiffs’ motion for class certification arguments.
While the Plaintiffs’ arguments regarding the requirements of Rule 23(a)’s requirements for numerosity, typicality, and adequacy were fairly plain vanilla, Plaintiffs’ arguments asserted in favor of class certification pursuant to Rule 23(a)(2) and 23(b)(2) are very interesting. In support of the commonality requirement of Rule 23(a)(2), Plaintiffs cited directly to Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2556 (2011), as well as prior briefing and findings with respect to Plaintiffs motion for a preliminary injunction, to argue that there exist numerous “common question(s)” applicable to a class, namely: (i) whether Section O violates the Class members’ rights to equal protection by drawing an impermissible distinction between heterosexual State employees and lesbian and gay State employees based on their sexual orientation and sex in relation to their committed life partner; (ii) whether Defendants deny equal compensation to lesbian and gay State employees with committed same-sex partners by eliminating their family coverage while continuing coverage for heterosexual State employees with legally recognized spouses; (iii) whether any conceivable governmental interests support Section O; and (iv) whether all lesbian and gay state employees suffer irreparable harm based on Defendants’ denial of their right to equal protection.
Under Rule 23(b)(2), Plaintiffs argued that, if Section O is enforced, Plaintiffs will suffer a violation of their right to equal protection under the law — specifically, they will be deprived of family health insurance solely because of their sexual orientation and sex in relation to their partner, and because the same constitutional violation has been committed against each member of the Class, injunctive and declaratory relief for the Class as a whole is appropriate. Plaintiffs further argued that inconsistent adjudications with respect to individual class members would work a hardship on Defendants and — relying again on prior briefing in support of their motion for a preliminary injunction — cited to prior briefing in which Defendants expressed concern about administrative efficiency in that they would find it difficult to adhere to separate, varying, and potentially contradictory rulings on whether a particular gay or lesbian state employee can obtain family health insurance.
Implications For Employers
While unopposed, the Court’s ruling signals a turning of the tide in complex litigation for public and private employers alike. Immediately following the class certification ruling in Arizona, a lawsuit was filed in Houston, Texas alleging similar claims against the City of Houston. While private employers need not worry about equal protection arguments, they should be aware that they are not immune from similar claims in the event they impermissibly deny certain benefits to gay or lesbian employees, either in jurisdictions that expressly protect employees from discrimination based on sexual orientation and/or gender identity and expression, or in claims that are enforced by the EEOC. Not only is the plaintiff’s bar becoming more creative and successful with these claims, but also local, state and federal law has continued to expand to protect rights for gay and lesbian employees.