Considine v. Brookdale Senior Living
GLAD represented Kerry Considine in a discrimination suit against her employer, Brookdale Senior Living, after Brookdale denied her the right to put her wife, Renee, onto her employer-provided health plan. Kerry’s claim charged that Brookdale discriminated against her on the basis of her sex, in violation of Title VII of the federal Civil Rights Act of 1964, the Equal Pay Act and the Connecticut Fair Employment Practices Act.
Kerry filed her claim with the federal Equal Employment Opportunity Commission (EEOC) and shortly thereafter Brookdale changed its policy and decided to extend health insurance benefits to both same-sex and different-sex spouses. Subsequently, the EEOC made an initial determination that there was “reasonable cause to believe that the Respondent [Brookdale] has discriminated against the Charging Party [Kerry] on account of her sex.” Kerry then received a right-to-sue letter from the EEOC.
Following the filing of our complaint in the federal district court in Connecticut, it came to light that Kerry had, as a condition of her employment, signed a mandatory arbitration agreement. Brookdale moved to compel our case to arbitration, and the US District Court judge agreed, ruling that an arbitrator had to determine whether Kerry’s claims were subject to arbitration.
In arbitration, Kerry argued that her claims for declaratory and injunctive relief should not be in arbitration and should return to federal court based upon an express exclusion in the arbitration agreement. Brookdale asserted that, at best, the agreement was ambiguous and, therefore, must be interpreted to favor arbitration. On the merits, Brookdale also argued that Kerry had no current claim because she was now receiving the benefits that previously were denied. The arbitrator has now ruled that Kerry’s claim is subject to arbitration, and that Kerry’s claim on the merits should be dismissed in arbitration because it was not ripe (meaning essentially that she has no current, live controversy with Brookdale because she is receiving the benefits).
We do not believe the arbitrator’s ruling is correct on any point, but the arbitrator’s ruling is final and cannot be appealed.
Kerry Considine, 36, is a physical therapist who really enjoys working with senior citizens – helping them regain the ability to take care of themselves in their daily lives. She’s worked at Brookdale Senior Living in Hartford, Connecticut, since October 2012. She loves her job and does it well. So she was “shocked and incredibly disappointed” when Brookdale told her that she would not be able to put Renee, her wife, on her employer-provided health insurance – the way all of her straight co-workers can with their husbands and wives.
Kerry and Renee, who is also 36, had recently married on a farm in Massachusetts, surrounded by family and friends who played every possible role in the day – officiant, musician, beer-maker and more. “It was the most perfect day,” says Renee. They met in college, where they were both in a stage production of Clue. (Kerry was Mrs. Peacock and Renee was a police officer.) They shared the belief that family is the most important thing in life and cemented that belief when they married after 12 years together.
Their happiness, however, was marred by the news that Brookdale would not respect their marriage and treat Kerry on an equal footing with her straight coworkers. Beyond the hurt of disrespect, the lack of health insurance has a very practical impact on their plans for family and work. Renee is currently in graduate school working toward becoming a school guidance counselor, where her student health plan does not cover many of her medical expenses. Post-graduation, she hopes to get a foot in the door of the profession by taking part-time work – which again may not offer adequate health insurance coverage. The financial and emotional strain of having inadequate health insurance weighs on the couple every day.
Even more meaningfully, Kerry and Renee had planned to start a family, with Renee getting pregnant. They now worry about how they will pay for prenatal care – and even if this is the right time at all.
“We are being forced to rethink significant things in our lives,” says Kerry. “It’s hard for me to believe that an organization devoted to health and wellness would treat one of its own employees this way. It’s just not right.”
Wedding Photo: Lesley Arak