Legally Married, but Their Boss Disagrees

Even in states that recognize gay marriage, some same-sex couples are denied health insurance benefits by their employers.

Mario Anzuoni/Reuters

Call it a little ditty about Jackie and Diana: Jacqueline Cote and Diana Smithson met on Cape Cod in 1992, fell in love, and moved to Maine together in 1998. They both got jobs at Walmart, working side by side in the bakery department. In 2003, they decided to make it official. They moved to Massachusetts and, five days after the state made it legal, they got married. They both continued to work in various positions at Walmart stores.

In 2006, Cote was promoted to a management job, where she made significantly more money and generally enjoyed the work. The following year, Smithson quit her own job in order to care for Cote’s elderly mother, who had dementia.

Cote tried to add Smithson to her health-insurance plan as a spouse. When she logged into Walmart’s employee-benefits site, she said it required her to select her spouse’s gender.

“I would click 'female,' and it would tell me I could not proceed and I needed to call the home office [in Arkansas],” Cote told me.

When she called, the company said “that wasn't something that they were prepared to offer at this time,” Cote said.

Every year, Cote churned through the same process at open-enrollment time, and every year, she was denied. In 2012, Smithson was diagnosed with ovarian cancer, and she lost the private insurance she had been paying for separately.

When the federal Defense of Marriage Act was overturned in 2013, Cote called the home office again.

“I would like to add my spouse to my insurance,” she said.

“What is your husband's name?” she recalls the representative asking.

“My spouse is Diana Smithson.”

“You're married to a woman?"

Cote was put on hold. Her request was denied.

Smithson (left) and Cote (Courtesy of Jacqueline Cote)

In 2014, Walmart changed its policy to allow same-sex spouses to join its employees’ health insurance plans. But it was too late for Smithson: She had already racked up more than $100,000 in medical expenses, Cote and her lawyers say.

Fifteen states have no law requiring insurance coverage for same-sex partners, and in those states, businesses can choose not to offer same-sex spousal health coverage. Massachusetts is not one of those states, however: According to the Kaiser Family Foundation, in the 37 states with legal gay marriage, “employees’ same-sex spouses should have the same eligibility as opposite-sex spouses for dependent health coverage.” The U.S. Supreme Court ruled in June that states that recognize same-sex marriage must also treat gay spouses the same as straight spouses when it comes to federal benefits and taxes.

Relationship Recognition and Health Insurance Coverage

“We have so many states that now that have marriage equality, but so many employers have not updated their policies to reflect the change in the law,” Cote’s lawyer, Allison Wright, told me. “They are denying benefits to employees who are in legal marriages.”

Wright says this type of discrimination contributes to poverty among LGBT couples. Gay people are more likely to have an income below $24,000 than straight people are. They are also less likely to have employer-sponsored insurance and more likely to be enrolled in Medicaid.

This week, the U.S. Equal Employment Opportunity Commission said there was reasonable cause to believe Walmart discriminated against Cote and Smithson because of their sex. Walmart will now enter conciliation with the couple, which might meant that the company will pay off some of their medical debt, Wright said. If Walmart refuses to pay, Wright said her organization, the Gay & Lesbian Advocates & Defenders, may pursue the matter in federal court. The EEOC ruling says Walmart denies the policy was discriminatory because it is self-insured, meaning its employees' premiums go Walmart, rather than a separate insurance company.

“While we disagree with the finding of reasonable cause, we have notified the EEOC of our willingness to meet with them and Ms. Cote to discuss resolving the matter,” Walmart spokesman Randy Hargrove told me. Hargrove said he is not aware of any other employees in a situation like Cote’s.

To Cote and her lawyers, the dispute is about more than finances. Cote said she felt like a second-class citizen. Over the years, she would sometimes test Walmart’s website by clicking “male,” rather than “female,” on her spousal benefits application. The form would sail through the system, she said.

She says she now wants an apology on top of restitution for the medical bills.

“These radiologists are responsible for [Diana] still being here,” she said. “It's difficult for her to not be able to pay them.”

As gay marriage becomes even more widespread, cases like Cote’s are bound to become rarer. In 2013, the Human Rights Campaign found that 62 percent of Fortune 500 companies offer health benefits for domestic partners. Still, the other 34 percent represents a long way to go for some same-sex couples. Currently, GLAD is pursuing a case in the U.S. District Court involving a woman named Kerry Considine, a licensed physical therapist at Brookdale Senior Living in Connecticut who was prevented from adding her legal wife to her employee health insurance plan, according to the lawsuit.

"I thought we, as a society, were moving forward,” Considine told the AP. “To be with a company that I feel isn't is hurtful and just not what I expected."