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53–848 PDF 2010

S. Hrg. 111–758 

DOMESTIC PARTNER BENEFITS: FAIR POLICY AND 

GOOD BUSINESS FOR THE FEDERAL GOVERNMENT 

HEARING 

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

OF THE

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

OCTOBER 15, 2009 

Available via http://www.gpoaccess.gov/congress/index.html 

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs 

( 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

ROLAND W. BURRIS, Illinois 

PAUL G. KIRK, JR., Massachusetts 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

JOHN MCCAIN, Arizona 

GEORGE V. VOINOVICH, Ohio 

JOHN ENSIGN, Nevada 

LINDSEY GRAHAM, South Carolina 

ROBERT F. BENNETT, Utah 

MICHAEL L. ALEXANDER, Staff Director 

LAWRENCE B. NOVEY, Senior Counsel 

KENYA N. WILEY, Counsel 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

AMANDA WOOD, Minority Director of Governmental Affairs 

TRINA DRIESSNACK TYRER, Chief Clerk 

PATRICIA R. HOGAN, Publications Clerk and GPO Detailee 

LAURA W. KILBRIDE, Hearing Clerk 


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C O N T E N T S 

Opening statements: Page 

Senator Lieberman ........................................................................................... 1 

Senator Collins ................................................................................................. 3 

Senator Akaka .................................................................................................. 7 

Prepared statements: 

Senator Lieberman ........................................................................................... 23 

Senator Collins ................................................................................................. 26 

Senator Akaka .................................................................................................. 28 

Senator Burris .................................................................................................. 30 

Senator Kirk ..................................................................................................... 31 

WITNESSES 

THURSDAY, OCTOBER 15, 2009 

Hon. Tammy Baldwin, a Representative in Congress from the State of Wisconsin .................................................................................................................... 4 

Hon. John Berry, Director, U.S. Office of Personnel Management ..................... 8 

William H. Hendrix III, Ph.D., Global Leader, Gays, Lesbians, and Allies 

at Dow (GLAD), The Dow Chemical Company .................................................. 10 

ALPHABETICAL LIST OF WITNESSES

Baldwin, Hon. Tammy: 

Testimony .......................................................................................................... 4 

Prepared statement .......................................................................................... 32 

Berry, Hon. John: 

Testimony .......................................................................................................... 8 

Prepared statement with attachments ........................................................... 35 

Hendrix, William H., III, Ph.D.: 

Testimony .......................................................................................................... 10 

Prepared statement with attachments ........................................................... 84 

APPENDIX 

‘‘How Many Fortune-Ranked Companies Provide Domestic Partnership Benefits,’’ chart submitted by Senator Lieberman .................................................... 25 

Responses to post-hearing questions for the Record from: 

Mr. Berry ........................................................................................................... 95 

Mr. Hendrix ...................................................................................................... 104 

Statements for the Record from: 

John Gage, National President, American Federation of Government Employees, AFL–CIO (AFGE) ........................................................................... 107 

Susan Rockwell Johnson, President, American Foreign Service Association (AFSA) .................................................................................................... 112 

Charles M. Loveless, Director of Legislation, American Federation of 

State, County and Municipal Employees, AFL–CIO (AFSCME) .............. 113 

William Burrus, President, American Postal Workers Union, AFL–CIO 

(APWU) .......................................................................................................... 114 

Donna Griffin, Senior Vice President and Chief Diversity Officer, The 

Chubb Corporation ........................................................................................ 116 

Wendy Wright, President, Concerned Women for America (CWA) .............. 120 

Domestic Partnership Benefits and Obligations (DPBO) Coalition ............. 121 

Joe Solmonese, President, Human Rights Campaign (HRC) ........................ 123 


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IV 

Statements for the Record from—Continued 

Colleen M. Kelley, National President, National Treasury Employees 

Union (NTEU) ............................................................................................... 125 

Jody M. Huckaby, Executive Director, Parents, Families, and Friends 

of Lesbians and Gays (PFLAG) ................................................................... 131 

Teachers Insurance and Annuity Association-College Retirement Equities 

Fund (TIAA-CREF) ....................................................................................... 134 


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DOMESTIC PARTNER BENEFITS: FAIR POLICY 

AND GOOD BUSINESS FOR THE FEDERAL 

GOVERNMENT 

THURSDAY, OCTOBER 15, 2009 

U.S. SENATE,

COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 10 a.m., in room SD– 

342, Dirksen Senate Office Building, Hon. Joseph I. Lieberman, 

Chairman of the Committee, presiding. 

Present: Senators Lieberman, Akaka, and Collins. 

OPENING STATEMENT OF CHAIRMAN LIEBERMAN 

Chairman LIEBERMAN. Good morning, and welcome to the hearing. Today, our Committee will hear testimony on S. 1102, the Domestic Partnership Benefits and Obligations Act, which Senator 

Collins and I introduced last year and again earlier this year to 

bring equity to Federal workers and to strengthen the workforce 

that serves the American people. 

We are holding this hearing as part of the Committee’s responsibility under Senate rules for the civil service of our Federal Government. 

Although we conducted a hearing on this legislation during the 

last Congress, we felt it would be useful to revisit the matter this 

year particularly to give the new Administration an opportunity to 

express its views on S. 1102. And in that regard, we are pleased 

to welcome the new Director of the Office of Personnel Management (OPM), John Berry. We are also going to hear from Dr. William Hendrix of Dow Chemical, which is typical of Fortune 500 

companies in that it provides benefits to same-sex partners of its 

employees. And first we will hear in a few moments from our colleague from the House, Tammy Baldwin, of Wisconsin, who has 

sponsored companion legislation in what over here we love to call 

‘‘the other body.’’ 

Senator Collins and I introduced this bill because we believe it 

is the fair and right thing to do, and also because we believe it 

makes practical sense for the Federal Government as an employer. 

Particularly as we approach a generational change in the Federal 

workforce that will see the retirement of approximately one-third 

of all Federal employees, it seems to us to be just plan sensible 

that we do all we can to attract and retain the ‘‘best and the 

brightest’’ to serve in the Federal Government in the years ahead, 


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and we are convinced that this legislation will help us accomplish 

that. 

Our bill would provide that same-sex partners of Federal employees have equal access to their partners’ employee benefit programs. 

They would be eligible to receive health benefits, long-term care, 

family and medical leave, Federal retirement benefits, and any 

other benefits for which the spouses of traditionally married employees are eligible. Federal employees and their domestic partners 

would have the same legal responsibilities that apply to married 

employees and their spouses, such as anti-nepotism provisions, financial disclosure requirements, and conflict-of-interest rules. 

The Williams Institute, at the University of California, Los Angeles (UCLA), estimated that, as of 2007, over 34,000 Federal workers live in committed relationships with same-sex partners, and of 

that number, over 30,000 have partners who are not Federal employees. These Federal employees have, therefore, been forced to 

choose between their commitment to public service and their commitments to their families and have been forced in that sense to 

accept fewer protections for their families—essentially less compensation—than other Federal employees or than they could receive at many private employers. 

An estimated 18.4 percent of all employees’ compensation, in 

fact, comes in the form of benefits, including benefits for family 

members. Therefore, employees who are not afforded equal benefits 

for their families are essentially paid less than everyone else is. 

We often hear people say that the government should be run like 

a business. There is truth to that. On the other hand, it is also true 

that government and businesses have different purposes and goals. 

But in this case, I do think government has a lot to learn from private sector business models. 

The fact is that today—this is a very significant number, and I 

am going to say it slowly—almost 10,000 private sector companies 

of all sizes provide benefits to domestic partners and more than 

half—59 percent—of all Fortune 500 companies do so. Among them 

are famous names like Disney, General Electric, IBM, the Chubb 

Corporation, Lockheed Martin, Duke Energy, and Dow Chemical, 

which will be represented today. I presume that these companies 

provide domestic partner benefits not just because it is the right 

thing to do but also because they have determined that such employee management practices make good business sense. 

The fact is also that the public sector is catching up. Currently, 

the governments of 22 States, including my home State of Connecticut, and about 154 local jurisdictions provide domestic partner 

benefits, as do over 300 colleges and universities. 

In June of this year, President Obama announced that his Administration would extend certain identified benefits to eligible 

same-sex domestic partners of Federal employees, but that he could 

do so only to the extent possible by executive action under existing 

law. The State Department promptly extended certain important 

benefits to same-sex partners of employees serving overseas, such 

as the use of medical facilities and inclusion in emergency evacuation. OPM has also proposed that sick leave and long-term care 

insurance benefits can be extended administratively. But Federal 

legislation, such as that which Senator Collins and I have introVerDate Nov 24 2008 12:32 Dec 16, 2010 Jkt 053848 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 P:\DOCS\53848.TXT SAFFAIRS PsN: PAT

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1The chart referenced by Senator Collins appears in the Appendix on page 25. 

duced, is really necessary to provide to Federal employees and their 

same-sex partners the benefits that are available to married employees and their opposite-sex spouses and that provide the bedrock of any modern employee-benefit program. 

Will this add to the cost of providing Federal employee benefits? 

The answer is yes. How much? Well, that is what we are looking 

forward to hearing from Mr. Berry today. Of course, then we all 

have to make a judgment, which we have made, which is: Is it 

worth it? And I believe in many ways it is. 

The Domestic Partnership Benefits and Obligations Act will balance the scales of justice, but, again, it will also help the Federal 

Government be the best it can be, and that is why I am proud to 

cosponsor this legislation with Senator Collins, and I look forward 

to her opening statement now. 

OPENING STATEMENT OF SENATOR COLLINS 

Senator COLLINS. Thank you, Mr. Chairman. I appreciate very 

much your important leadership on this issue, and I am very 

pleased that our House colleague, Representative Baldwin, is able 

to join us today. 

The title of this hearing really says why we have introduced this 

bill. The title of this hearing is ‘‘Domestic Partner Benefits for Federal Employees: Fair Policy and Good Business.’’ It aptly describes 

why we believe this legislation is necessary. 

When it comes to employment, the Federal Government must 

compete with the private sector in attracting the most qualified, 

skilled, and dedicated employees. Today, health, medical, and other 

benefits are a major component of any competitive employment 

package. 

As the Chairman has explained, the Domestic Partnership Benefits and Obligations Act, which we have introduced, would give a 

Federal employee and his or her domestic partner the same benefits that are available to married Federal employees. 

The Federal Government already faces a two-pronged challenge 

in attracting and retaining talented and dedicated employees. 

The first challenge comes from the private sector. As the Chairman has pointed out, increasingly private sector employers are offering these kinds of benefits as standard fare. Among the Fortune 

500 companies, domestic partner benefits are becoming commonplace. According to the Office of Personnel Management, nearly 60 

percent of the Fortune 500 companies, including some of our top 

Federal contractors, extend employment benefits to domestic partners. 

But, indeed, if you look more broadly, as the chart before us demonstrates,1 it is not just the largest companies. We are finding that 

increasingly businesses of all sizes are offering equal benefits, and 

the reason is simple. They want to have a competitive package to 

attract and keep the very best employees. 

The second challenge facing the Federal Government comes from 

the potential wave of Federal employee retirements in the next few 

years. Approximately 60 percent of the Federal workforce will be 

eligible for retirement over the next decade. If the Federal GovernVerDate Nov 24 2008 12:32 Dec 16, 2010 Jkt 053848 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 P:\DOCS\53848.TXT SAFFAIRS PsN: PAT

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1The prepared statement of Ms. Baldwin appears in the Appendix on page 32. 

ment fails to attract or retain employees because of a lack of competitive benefits, then the impact of these retirements will be magnified. 

I recall last year at our hearing we heard from a Foreign Service 

Officer who was leaving the Foreign Service over just this issue. 

We cannot afford that exodus of talent. 

As we learned at our hearing on this bill during the last Congress, the private sector offers domestic partner benefits as part of 

its strategy for building a stronger workforce. These benefits help 

foster a sense of loyalty between the employees and the organization and create a more stable and productive work environment. 

Many State and local governments also have extended employee 

benefits to domestic partners in committed relationships. Like Connecticut, the State of Maine offers benefits to its State employees 

who are in committed domestic partnerships. 

If the Federal Government is to compete with the private sector 

as well as with State and local governments for the most talented 

members of our workforce, and if our goal is to create a loyal, dynamic Federal workforce for the future, then we simply must be 

able to offer competitive benefits. 

In that regard, I would note that the Human Rights Campaign’s 

testimony points out that nearly 13 percent of employees’ compensation comes in the form of insurance and retirement benefits. 

So for not providing those benefits equally, we are really shortchanging some of our employees. 

Again, Mr. Chairman, thank you for your leadership and for 

holding this hearing today. I believe that our legislation will help 

to promote a strong Federal workforce. 

Chairman LIEBERMAN. Thanks very much, Senator Collins. 

We are really pleased now to welcome our colleague from the 

House, Congresswoman Tammy Baldwin, representing the 2nd congressional district of the great State of Wisconsin. 

I just had a flashback, I believe, being at a Milwaukee Brewers’ 

game with you some years ago. 

Ms. BALDWIN. That is an accurate flashback. [Laughter.] 

Chairman LIEBERMAN. Thank you for validating that. 

It is good to see you. Thanks for taking the time to come over, 

and that is why we wanted to give you the opportunity to speak 

first and on a separate panel, and then we will let you go back to 

the House because I know you have another committee meeting 

going on now. But thanks for your leadership on this issue and others in the House. We welcome you. 

TESTIMONY OF HON. TAMMY BALDWIN,1 A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF WISCONSIN 

Ms. BALDWIN. Thank you, Mr. Chairman, and Ranking Member 

Collins, for affording me the opportunity to testify, for having this 

historic hearing, and for your leadership on the Domestic Partnership Benefits and Obligations Act. I very much appreciate this opportunity, and I, too, want to add my appreciation of the members 

of your second panel—OPM Director John Berry and Dr. William 


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Hendrix from Dow Chemical Company, showing leadership in the 

private sector on this important issue. 

As my colleagues on this Committee know, the Federal Government employs more than 1.8 million civilian employees, making it 

the Nation’s largest employer. Historically, the Federal Government has been a leader in offering important benefits to its employees. But today we are lagging behind, and this is particularly true 

regarding the extension of benefits to employees with same-sex 

partners. 

As it stands, some Federal employees do not receive equal compensation and benefits for their equal contributions. And the Federal Government is not keeping pace with leading private sector 

employers in recruiting and retaining top talent. 

Mr. Chairman, you have outlined in your opening statement a lot 

of the progress made in the private sector, as did you, Ranking 

Member Collins, and I will not repeat those statistics that are revealed in this chart and others. I would just share one anecdote 

from my own district, and that is that the University of Wisconsin 

and the State of Wisconsin did not have any domestic partnership 

laws until very recently, until this year. And a couple of years ago, 

we lost an engineering professor to another university that did 

offer domestic partnership benefits because of his feeling that the 

lack of those policies was unjust. He brought with him to this new 

university his $3.4 million engineering grant, and the estimate of 

that loss would have covered the whole cost of implementing domestic partnership policies in the University of Wisconsin system. 

And so one anecdote, not a scientific study, of what difference these 

policies do make to retaining great talent. And Ranking Member 

Collins referenced Ambassador Michael Guest and his decision that 

was a very painful one for him to leave the Foreign Service because 

of the lack of domestic partnership protections. 

Under the Domestic Partnership Benefits and Obligations Act, a 

Federal employee and his or her same-sex domestic partner who 

are not related by blood and are living together in a committed, intimate relationship would be eligible to participate in Federal retirement benefits, life insurance, health benefits, workers’ compensation, and family and medical leave benefits to the same extent as married employees and their spouses. These employees and 

their domestic partners would likewise be subject to and assume 

the same obligations that are applied to married employees and 

their spouses. 

I want to make it very clear that this bill has very strong antifraud provisions, requiring employees to file an affidavit of eligibility in order to extend benefits to their domestic partner, and this 

is significant especially considering that we do not require married 

employees to show any documentary evidence of their marriages 

when claiming spousal benefits. 

The penalties for fraudulent claims for domestic partners would 

be the same as current penalties for fraudulent claims of marriage. 

For example, intentional false statements on the Federal Employee 

Health Benefits form is punishable by a fine of up to $10,000 or 

imprisonment of up to 5 years, and the same would apply under 

this legislation. 


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Mr. Chairman, I appear before you today both as the lead author 

of this legislation in the House of Representatives, but also as a 

lesbian Federal employee who has been in a committed relationship with my partner, Lauren, for over 13 years. Over the years, 

Lauren and I have examined the differences between my benefits 

and my ability to provide for her compared to the benefits enjoyed 

by my straight and married colleagues in the Congress. 

Some quick number crunching would demonstrate that the difference between my health benefits and yours with regard to just 

that benefit alone over the course of my tenure in Congress is 

measured in five figures. Although the Federal Government offers 

its employees and their dependents more than 300 health insurance plans and subsidizes health insurance premiums, I am not eligible to cover Lauren under any of these plans like my straight 

married colleagues can. And this is a significant inequality. 

Although I can designate Lauren as a beneficiary for my life insurance, my Thrift Savings Plan, and any unpaid compensation in 

the event of my death, if for some reason I had not taken the extra 

step of completing that paperwork, the order of precedence would 

have prevented Lauren from receiving those savings. And, heaven 

forbid, anything should happen to me, Lauren is not eligible to receive the survivor annuity from my pension nor health insurance 

survivor benefits to which others would be able to gain access. 

Unlike the spouses of my colleagues, Lauren is also not currently 

subject to any of the obligations related to my Federal service, and 

I find this disturbing. Think about this. All Members of Congress 

file annual financial disclosures. Married members must file very 

important information about their spouses’ income, their investments, gifts, and debts, etc. Surely the public interest would require that these obligations apply also to partners of gay and lesbian office holders. 

In June, as you referenced, President Obama signed a presidential memorandum on Federal benefits and nondiscrimination 

which directs OPM and the State Department to extend certain 

benefits to the same-sex partners of Federal employees within the 

confines of existing Federal law. Although the memorandum is an 

important step in providing same-sex partners of Federal employees with benefits already available to the spouses of heterosexual 

employees, it falls short of providing the full range of benefits. 

President Obama recognized and acknowledged that fact when 

he signed the memorandum, calling it ‘‘just a start.’’ And he went 

on to say, ‘‘As Americans, we are all affected when our promises 

of equality go unfulfilled.’’ 

President Obama recognizes that the full extension of benefits 

will require an act of Congress and proclaimed his strong support 

for the legislation that you are reviewing today. 

Like our President, I strongly believe that we must address the 

significant inequality in compensation experienced by an estimated 

30,000 employees at all levels of the Federal Government who currently cannot provide benefits to their same-sex domestic partners. 

The purpose of the Domestic Partnership Benefits and Obligations 

Act is to ensure that hard-working Americans can no longer be denied equal compensation for equal work just because of who they 

love. There is certainly nothing more American than ensuring that 


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1The prepared statement of Senator Akaka appears in the Appendix on page 28. 

people have equal job opportunities and are paid fairly for a full 

day’s work. 

Chairman Lieberman, Ranking Member Collins, my thanks to 

you again for inviting me to testify. 

Chairman LIEBERMAN. Congresswoman Baldwin, thanks very 

much for that testimony, which was very strong—strong in terms 

of the public impact overall, but also to the extent to which you 

talked about its personal impact, which is very real and to me very 

compelling. 

I do not have any questions. Senator Akaka, do you have any 

questions for the Congresswoman? 

Senator AKAKA. Mr. Chairman, I do have some questions. 

Chairman LIEBERMAN. Go right ahead, if you would like. 

Senator AKAKA. Mr. Chairman, I would ask that my full statement be inserted in the record. 

Chairman LIEBERMAN. That is fine. Actually, if you wanted to 

wait until afterwards, because she is going to go back, unless you 

have specific questions for her, I would welcome your opening 

statement. 

Senator AKAKA. Thank you. 

Chairman LIEBERMAN. Is that OK? All right. 

Ms, Baldwin, maybe we will let you go because I know you have 

the other meeting. Thanks very much, and obviously we will continue to work together. Our own hope is to mark this bill up as 

soon as possible within this Committee and send it out to the floor, 

and then obviously scheduling depends on higher authorities— 

earthly authorities, but higher. [Laughter.] 

Thank you very much. Have a good day. I thank Congresswoman 

Baldwin. 

Senator Akaka, would you like to make your opening statement 

at this time? We would welcome it. You have worked, obviously, 

very hard in the overall area of human capital management. You 

are the chair of the relevant Subcommittee of this Committee, so 

I would welcome your opening statement. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. Thank you very much, Mr. Chairman. I would 

ask that my full statement be placed in the record.1

Chairman LIEBERMAN. Without objection. 

Senator AKAKA. I want to thank you and Ranking Member Collins for holding this hearing. It addresses a very important issue: 

Providing domestic partnership benefits to Federal employees. 

I am proud to be a cosponsor of your bill, Mr. Chairman, S. 1102, 

the Domestic Partnership Benefits and Obligations Act of 2009. My 

Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia has been working to 

improve Federal recruiting and hiring in order to make the Federal 

Government the employer of choice in the Nation. This simply is 

not possible if we deny a subset of potential employees important 

benefits that other employers offer. 

A large number of private and public employers, including my 

home State of Hawaii, already provide domestic partner benefits to 


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1The prepared statement of Mr. Berry with attachments appears in the Appendix on page 

35. 

employees. If the Federal Government is to recruit and retain the 

most talented employees, it must follow the lead of the private sector and offer domestic partner benefits to Federal employees. Simply stated, Mr. Chairman, providing these benefits makes sound 

business sense. 

I am pleased that President Obama showed his commitment to 

Federal employees by signing a presidential memorandum in June 

directing the heads of the executive departments and Federal agencies to provide certain benefits to the same-sex partners of Federal 

employees. As the President acknowledged, however, this was only 

the first step, and more work needs to be done on the issue. 

We must not ask our dedicated Federal employees to sacrifice the 

needs of their families and loved ones in order to serve their country. As a Nation and as an employer, we must hold ourselves to 

the highest standards of equality. Providing Federal employees 

with domestic partner benefits will bring us a significant step closer to the principle of equality under the law. 

I look forward to hearing from our witnesses today, and, again, 

Mr. Chairman, thank you for holding this hearing. 

Chairman LIEBERMAN. Thank you very much, Senator Akaka. 

We will now go to the Hon. John Berry, Director of the U.S. Office of Personnel Management. It is great to welcome you back. I 

was thinking, of course, I still associate you with wonderful visits 

my family and I took to the National Zoo when you were the Director there, happy as I am that you are at OPM. And I do have the 

impression when I drive up Connecticut Avenue that every now 

and then I can hear the plaintive cries of some of the animals there 

about the fact that they miss you. [Laughter.] 

You were really a wonderfully spirited, effective, and devoted 

leader there, as you already have proven yourself to be at OPM. 

So it is an important issue, and the new Administration I know 

brings a new perspective to it, so we welcome your testimony at 

this time. 

TESTIMONY OF HON. JOHN BERRY,1 DIRECTOR, U.S. OFFICE 

OF PERSONNEL MANAGEMENT 

Mr. BERRY. Mr. Chairman, thank you for your leadership over so 

many years on this important issue, and, Ranking Member Collins 

and Senator Akaka, thank you all for your support and the energy 

that you have put behind this very important issue. We would not 

be here today without the leadership that you have provided year 

in and year out. So thank you, and hopefully we are closer to the 

finish line, so we look forward to that. 

I appreciate very much the opportunity to testify today, and I 

will do a short statement in exchange for the more detailed one for 

the record. 

This critical legislation, as has been discussed, would provide 

health, life, and survivor benefits to the same-sex domestic partners of Federal employees. 

I applaud each of you and all of the cosponsors of S. 1102 for introducing this bill in the Senate. Since the 109th Congress, you 


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have demonstrated your consistent leadership and your commitment on this issue by continually reintroducing this legislation. I 

want to thank you and commend you for your efforts to improve 

the Federal Government’s competitiveness in recruiting and retaining our most qualified workers. I also would like to recognize Congresswoman Baldwin’s incredible leadership in the House on this 

issue. 

The White House and the Office of Personnel Management 

wholeheartedly endorse passage of this bill, and I will summarize 

the reason why in the next 5 minutes. In my written testimony, I 

have mentioned some technical fixes to the bill that we are seeking, but I guess I would just make the offer to you and to the Committee staff that we will make all of our resources in the office 

available to help you as you move forward with the legislation. 

At my confirmation hearing, I said that two of my primary goals 

as the Director of OPM would be to make the Federal Government 

the country’s model employer, as Chairman Akaka shares in that 

effort, and to attract the best and the brightest of our country to 

Federal service. The passage of S. 1102 is essential to accomplishing both of these goals. 

Under current law, the Federal Government cannot offer basic 

benefits like health insurance, life insurance, and dental and vision 

insurance to the domestic partners of our gay and lesbian Federal 

employees. Opposite-sex domestic partners are not eligible for these 

benefits either, but they may gain eligibility through a valid marriage. Even in those States where same-sex partners can marry, 

their marriages are not recognized for purposes of Federal benefits 

because of the Defense of Marriage Act. 

The failure to provide these benefits to same-sex domestic partners directly undermines the Federal Government’s ability to recruit and retain the Nation’s best workers. Historically, the Federal 

Government has in many ways been a progressive employer. In 

this case, however, we have fallen behind the private sector and 22 

States now, including Connecticut, Maine, and Hawaii, and the 

District of Columbia. Almost 85 percent of the Fortune 100 already 

offer similar benefits to their same-sex domestic partner employees. 

These companies include Dow Chemical—which is with us today— 

Chevron, Archer Daniels Midland, Perot Systems, Lockheed Martin, and Food Lion. The Federal Government does not effectively 

compete with these companies for every talented person when we 

fail to offer comparable job benefits to our employees. 

We are also at a disadvantage, as has been discussed, in retaining experienced and highly effective employees—in whom we have 

invested, I should add, significant resources in their training and 

their job development—who may decide to find employment elsewhere because of the Federal Government’s failure to keep up with 

the private sector. 

The President took an important first step toward addressing 

these shortfalls in the June memorandum, but he also made clear 

we need a change in the law to provide these critical benefits to 

our employees. I would also note that the cost of extending these 

benefits to same-sex domestic partners is negligible. 

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1The prepared statement of Mr. Hendrix with attachments appears in the Appendix on page 

84. 

tirely—by the gay and lesbian employees who enroll their partners 

in those benefit plans. Adding domestic partner health insurance 

and survivor benefits for retirees would cost approximately $56 

million. This cost also includes $19 million in savings in the short 

term in that, if you opt to provide an annuity for your survivor, you 

opt for a lower benefit payment in the early years in exchange, just 

as you do for heterosexual married couples over the long term, and 

so there is a $19 million offset savings in the short term that is 

provided by the fact that there would be lower retirement annuities 

paid out to our Federal employees if we offer this benefit. 

Chairman LIEBERMAN. Excuse me. Am I right that is an annual 

number? 

Mr. BERRY. Yes, sir. 

Chairman LIEBERMAN. Good. 

Mr. BERRY. The marginal increase, the total cost of the entire implementation of this program equates to about two-tenths of 1 percent of the entire cost of our Federal Government health insurance 

program. To put this in perspective, we spend $35 billion a year 

on the Federal Employee Health Benefits Program (FEHBP) for 

our Federal employees and retirees. I can assure the Committee 

that the efficiencies and the program reforms that we intend to put 

in place that will benefit our Federal employees and retirees will 

more than offset the cost of this program over the life of this Administration. 

Simply put, end to end, extending benefits to same-sex partners 

is a good, sound business decision. Dow Chemical and the other 60 

percent of the Fortune 500 which provide these benefits can testify 

to that. This legislation is a valuable opportunity for the Federal 

Government to enhance an essential recruitment and retention 

tool. Just as important, this bill shows that we recognize the value 

of every American family and are committed to the ideal of equal 

treatment under the law that our Founding Fathers envisioned. 

Thank you, and I look forward to continuing our work together, 

and I am available to answer any questions that you might have. 

Chairman LIEBERMAN. Thanks very much, Director Berry, and 

we will have questions. 

We are glad to welcome Dr. William Hendrix, who serves as biology team leader for Insect Traits and Seed Treatment at Dow, and 

also chairs Dow’s Gays, Lesbians, and Allies at Dow Chemical Network. 

Dr. Hendrix, we are delighted to have you here and would welcome your testimony at this time. 

TESTIMONY OF WILLIAM H. HENDRIX, III, PH.D.,1 GLOBAL 

LEADER, GAYS, LESBIANS, AND ALLIES AT DOW (GLAD), THE 

DOW CHEMICAL COMPANY 

Mr. HENDRIX. Thank you very much, Chairman Lieberman. We 

appreciate the opportunity to testify today. 

Chairman Lieberman, Ranking Member Collins, Senator Akaka, 

and other Members of the Committee for Homeland Security and 

Governmental Affairs, as has already been mentioned, my name is 


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Dr. Bill Hendrix, and I am the biology team leader at Dow 

AgroSciences, a wholly owned subsidiary of Dow Chemical Company. I hold a Ph.D. in Entomology from Iowa State University and 

have worked for Dow almost 20 years. 

In addition to that role, I also serve as chair for the company’s 

Gays, Lesbians, and Allies at Dow, or the GLAD Network. It is an 

affinity group advocating for gay, lesbian, bisexual, and transgender and their allied employees within the company. GLAD is 

one of the seven employee networks at Dow, all working toward 

promoting an increasingly diverse and inclusive workplace. 

First, I should probably provide a little bit more background on 

Dow Chemical. Dow was founded 112 years ago in Midland, Michigan, and that is a small town of about 40,000 people, roughly 100 

miles north of Detroit, Michigan. Our small-town Midwestern roots 

have encouraged us to establish our enduring core values of integrity and respect for people. It is these values that form the very 

heart of our approach to diversity and inclusion. 

Over the years, as we have grown and become a major player in 

the global economy, diversity and inclusion have become key elements of our corporate culture. Just consider our footprint: We 

serve customers in 160 countries, we have manufacturing facilities 

in 35 different countries, and at last count, I have 46,000 colleagues who represent 100 different nationalities. And we are all 

working together to generate $57.5 billion in annual sales. 

Earlier this year, Dow completed its acquisition of Rohm and 

Haas, a $10 billion specialty chemicals company, that will further 

expand our growth potential and our reach into new markets and 

geographies. 

So, clearly, diversity underpins our workforce, our culture, and 

absolutely our business model. It is a highly competitive world 

where innovation is the key to securing competitive advantage, and 

we know that it is our ‘‘human element’’ that is the key to our success. As a result, we know that creating a respectful, inclusive 

working environment is not only a matter of fairness and equality, 

but also one of very critical economic and business importance. 

Likewise, we feel that S. 1102, the Domestic Partnership Benefits 

and Obligations Act of 2009, will similarly help the U.S. Government create a more respectful and inclusive work environment. 

With a shrinking and ever more diverse talent pool—particularly 

in the sciences and engineering—it is essential for us to actively include everyone to ensure we attract, develop, and advance the very 

best talent available in the marketplace. As an industrial, business-to-business supplier with almost no consumer marketing, and 

located largely in smaller rural areas, we must work even harder 

to create an identifiable employer brand to attract our top talent. 

We see our proactive stance on diversity and inclusion as a key element of this brand. 

Our open policy allows us to hire the best employees, with the 

greatest range of perspectives. When we discuss domestic partnership policies in the workplace, we do so knowing that this policy 

does give us an advantage. Because we do not have major offices 

or facilities in the metropolitan areas in the United States, our employees who would like access to domestic partnership policies 


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1The document submitted for the record by Mr. Hendrix appears in the Appendix on page 

90. 

often have more protection and freedoms under the Dow system 

than under the laws of their State or locality. 

Specifically, our Lesbian, Gay, Bisexual, and Transgender 

(LGBT) policies have been good for our workplace for two main reasons: One, retention of our employees has been enhanced because 

they know that they can perform their jobs openly and with the full 

support of their family situation without any fear of repercussions, 

and, therefore, they have much more reason to be committed to our 

company in return; and two, better recruitment of allies and younger workers, who often use employee benefits, such as support for 

domestic partner benefits and flexible work hours, as a litmus test 

for prospective employers. 

For Dow, like most companies, the offering of benefits to LGBT 

employees has been the result of a multi-stage journey. We first instituted sexual orientation in our employment nondiscrimination 

policies in 2000. We then added parity for domestic partnerships in 

2002. We added protection for gender identity in 2007. And a copy 

of our policy was entered into the written record.1 Of special note, 

I wanted to highlight the fact that is implemented globally for all 

160 countries that we do business in. 

The offering of domestic partner benefits is certainly not out of 

the norm, and we have already heard some statistics about that. 

According to the Human Right Campaign Foundation 2010 Corporate Equality Index, ‘‘the majority of Fortune 500 companies provide them, and they remain an overall low-cost, high-return benefit 

for businesses.’’ Currently 94 percent of the ranked companies in 

that survey offer domestic partner benefits to same-sex couples and 

70 percent offer them to opposite-sex couples. 

Often domestic partner benefits are seen as just a benefit for 

same-sex couples. But domestic partner benefits do not only attract 

LGBT employees; many companies report that the implementation 

of domestic partner benefits help attract and retain critical talent 

from non-gay and lesbian talent. These particular candidates have 

reported that the existence of a domestic partner benefits policy 

shows that the company values and truly believes in a workplace 

that is respectful and protects their employees. This trend is especially prevalent among younger candidates in the workforce—a segment obviously very critical to our success. And I would say you 

mentioned statistics of the retirement that is coming in the Federal 

Government, and we are looking at a very high rate as well, roughly 50 percent within the next 5 years. So it is very critical. 

Within Dow, we have instituted policies to create parity between 

those who are traditionally married and those couples who would 

like to take advantage of our domestic partner benefits. Therefore, 

we do offer benefits to both same-sex and opposite-sex couples, and 

those who qualify also have access to a wide range of benefits, 

which, on the whole, are very similar to those outlined in S. 1102. 

Many of these benefits do not require the company to incur any additional costs. As examples, in addition to our U.S. medical plan, 

prescription drug plan, and our dental plan, employees have access 

to family leave, insurance, pension, adoption assistance, and interVerDate Nov 24 2008 12:32 Dec 16, 2010 Jkt 053848 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 P:\DOCS\53848.TXT SAFFAIRS PsN: PAT

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1The document submitted for the record by Mr. Hendrix appears in the Appendix on page 

91. 

national relocation benefits. Where a benefit is offered to a traditional spouse, we try to offer that same benefit to a domestic partner. Therefore, partners may take advantage of things like company discounts, visits to the fitness center, access to the flu prevention program, and have ability to open up a checking account at the 

credit union. 

Obviously, on an international scale, local law can impact our offerings within different countries and for international relocation. 

However, our global policy is to provide parity between domestic 

partners and those that are traditionally married within the country. 

Obviously, our management is sensitive to the very critical issues 

related to the cost that offering such benefits would add to our 

company’s bottom line. After 7 years of offering domestic partner 

benefits to both same-sex and opposite-sex couples, I can tell you 

that the program does not add significantly to the bottom line. Currently, Dow Chemical has 105,653 covered lives under our U.S. 

Medical Plan with an annual cost of $325 million. Quite in the ballpark of numbers quoted earlier. This number includes employees, 

retirees, and dependents of both our employees and retirees. We 

currently have 282 domestic partners who are covered under Dow’s 

U.S. health benefits. That represents 0.27 percent of our covered 

lives. Interestingly, the average net payments for domestic partners is slightly less—0.24 percent of our total spending, which is 

roughly $2,730 per domestic partner. 

A second concern is how you create a registry of qualified domestic partnerships. This does entail a balance between respecting the 

individual’s need for privacy with the company’s need to install 

guidelines, as there are no national or State registries of domestic 

partnerships in most States, such as marriage licenses. For your 

use, we have provided to the record a copy of our policy for determining the existence of a qualified domestic partner relationship.1

Once this form is completed by the employee, the couple is granted 

access to all of Dow’s domestic partner benefits. To date, we have 

had no issue with fraudulent claims for benefits. In fact, according 

to Lambda Legal, time has shown that fraud has not been a problem in the domestic partner benefits programs, and it is probably 

a lesser risk among employees claiming benefits. It is probably less 

of a risk compared to couples in a traditional marriage situation 

due to the tax penalty that is incurred with a domestic partner 

benefit. 

Public policy can also augment a company’s diversity program. 

Accordingly, Dow continues to strongly support the Tax Equity for 

Domestic Partner and Health Plan Beneficiaries Act, or S. 1556. 

Unfortunately, current law requires an employee whose domestic 

partner receives health benefits to pay taxes on their employer’s 

contribution for health insurance benefits, and both the employee 

and employer must pay payroll taxes on this additional taxable income. 

Overall, Dow has found it a relatively easy transition to offer domestic partner benefits. This cost has been minimal while the imVerDate Nov 24 2008 12:32 Dec 16, 2010 Jkt 053848 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 P:\DOCS\53848.TXT SAFFAIRS PsN: PAT

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1The information referenced by Mr. Berry appears in the Appendix on pages 39-83 respectively. 

pact to the daily culture has been immense. Every time an email 

goes out to employees stating that ‘‘spouse/domestic partner,’’ then 

we send a very positive message for our workplace inclusion and 

reinforce our ‘‘human element’’ advantage. 

Dow appreciates the chance to share our views and applauds the 

Committee’s work to gather more information on domestic partner 

benefits within the workplace. We strongly support the addition of 

these policies to all workplace environments and stand ready to assist in any way to review our own policies in this area. We welcome 

any further questions you might have at this time. 

Chairman LIEBERMAN. Thanks very much, Dr. Hendrix. I appreciate your opening statement. We will do 7-minute rounds of questions. 

I must say perhaps the obvious, that I think it is really significant that you are from Dow Chemical, and if you look at the list 

of corporations that have provided benefits, equal benefits to samesex partners of their employees, it has gone way beyond what 

might be called the New Age industries, the high-tech information 

technology companies centered around Silicon Valley or Seattle. 

Mr. HENDRIX. Absolutely. 

Chairman LIEBERMAN. I do not mean this personally, but Dow is 

an old business. [Laughter.] 

Mr. HENDRIX. And we are quite proud of that, and you are exactly right. It is a very traditional business. 

Chairman LIEBERMAN. It is a traditional business, right, obviously with progressive management, but this very traditional business has made this judgment based, presumably again, on what it 

thinks is fair, but also based on what its business model is. So I 

think there is significance in that. 

Director Berry, at some point, as we consider this in the full 

Committee or out on the floor of the Senate, I am sure we are going 

to be pressed to try to estimate the total additional costs of this. 

I thought the numbers you provided were very helpful, and twotenths of 1 percent not of Federal employee expenses, but twotenths of 1 percent of the Federal health benefits alone. I do not 

need this now, but to the extent as we go on, people will ask about 

what are the cost implications beyond the health benefits, and if 

you can help us do that, I am sure we will benefit. 

Mr. BERRY. Mr. Chairman, we will definitely get you those numbers for the record.1 We have that on a 10-year basis, and we can 

get you all of that. But I think it is important to have some comparison because this is such an important recruitment and retention tool. We spend money on important recruitment efforts. Right 

now, we are spending $43 million a year on relocation of employees 

for the Federal Government. We spend $85 million in recruitment 

incentives. We spend $155 million a year on retention incentives. 

So, when you put this in that context, it is in a very small category in terms of what we can do in terms of tools in our tool belt 

that we can have that can help us with recruitment and retention. 

This is one of the lowest-cost options you could give us. So, at the 

same time it is an incredibly powerful tool for its price. 


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1The chart referenced by Senator Lieberman appears in the Appendix on page 102. 

And so when I put it in the context of those other tools that we 

use, this is a no-brainer for us in terms of a good deal for the Federal taxpayer. 

Chairman LIEBERMAN. That is very well said. I notice on the 

chart that you provided to the Committee, you have a 10-year projection for current employees of $633 million.2 I know it is not even 

over the 10 years, but if you average it, obviously it comes to about 

$63 million, which is—I think those comparisons are excellent. The 

other money that is being spent for the retention incentives are— 

well, more than twice that number. 

Mr. BERRY. Absolutely, sir. 

Chairman LIEBERMAN. Have there been—I quoted one study 

from UCLA about estimated numbers of Federal employees with 

same-sex partners who were not working for the Federal Government. Have there been any studies or surveys that tried to quantify, beyond the anecdotal or common sense, the impact that providing these benefits would have on recruitment and retention? Obviously, these would be mostly in the private sector. 

Mr. BERRY. There are studies in the private sector, Mr. Chairman, and we can provide those to the staff for the record so that 

you will have access to those. A lot of good work has been done, 

and it references what Dr. Hendrix referenced, which is that it is 

not as if there is a tidal wave of applicants in any company for this 

benefit. 

Chairman LIEBERMAN. Right. 

Mr. BERRY. It is an important tool, but in terms of the level of 

application across the board in companies across the Nation and in 

States and local governments that have done this they have found 

that the rate of application is very low. And I think what you have 

hinted at and Dr. Hendrix hinted at is the more important fact 

that this isn’t just for the LGBT employees. This has become a litmus test for this generation. Kids coming out of school today are 

looking at companies and places to work, and they have in the back 

of their minds certain litmus tests that they use to determine, ‘‘Is 

this a place I want to work?’’ 

Chairman LIEBERMAN. Yes. 

Mr. BERRY. And young kids today are looking at this as a basic 

indicator, that if your company does not have this, you are not a 

cool place to be. This is not just important for the LGBT community. This is important so that we can be competitive in hiring kids 

out of college and graduate schools today who, if we do not have 

this, are not seeing us as a cool place to be. 

Chairman LIEBERMAN. It is a good point, and it is certainly validated by the differing opinions among different age groups on questions of gay rights generally, including this one. 

I think your testimony, Dr. Hendrix, has been very helpful, both 

in terms of that factor, the impact on recruitment of non-gay and 

lesbian personnel to work for the Federal Government. 

In Connecticut, we have a large employer, one of whose major 

concerns about the current debate about health care reform is that 

the employer not be compelled to reduce their benefits to their employees. And the justification is that they believe from a business 


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point of view that the provision of benefits for the workers and 

their families actually pays off in more hours, more days at work, 

fewer days missed, either because of the illness of the employee or 

the illness of a family member. 

So I do not know whether there is any experience that you have 

had at Dow or you have any other data reflection on this, but I 

wonder if, in addition to helping recruitment and retention, whether this provision of health benefits for partners of Federal employees also may be beneficial to what I call ‘‘productivity’’? 

Mr. HENDRIX. I can say that we have not done a firm survey. 

Again, it is more anecdotal. But we feel that is very true, again, 

with the increased support of the company that they feel that they 

are getting in return, it does pay back. And it has been quite 

strong. 

Like you have already said, if the company helps support their 

infrastructure, then that makes them a lot more able to work and 

to put more into it. We definitely believe that has been the case. 

Chairman LIEBERMAN. You are talking also, I think, if I am getting the drift, about loyalty and morale. 

Mr. HENDRIX. Yes. 

Chairman LIEBERMAN. In addition to the domestic partner being 

healthy so a worker can go to work without concern. Part of it is 

building up loyalty to the company, which hopefully we would do 

with the Federal employees. 

Mr. HENDRIX. Absolutely. 

Chairman LIEBERMAN. My time is up. Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. 

Mr. Berry, in your written testimony, you discussed at more 

length a memorandum that the President issued in June in which 

he requested that the Secretary of State and OPM identify benefits 

that could be extended to the same-sex partners of Federal employees. In addition, the President directed all executive departments 

and agencies to undertake that review. 

In light of that Executive Order or memorandum, could you 

please explain, in case we get this question, why our legislation is 

still needed? 

Mr. BERRY. That is a great question, Senator Collins. The President made clear in signing that bill—and my General Counsel 

Elaine Kaplan, who is behind me here today—did a thorough and 

exhaustive review of Title 5 on this issue as to whether either OPM 

or the President has the authority to move forward and provide 

this benefit dealing with health insurance and retirement insurance benefits to our Federal employees. And the conclusion of that 

study, which was done in consultaton with OPM, the Justice Department, White House Counsel, and the State Department’s Counsel, was no, neither the Office of Personnel Management nor any 

Federal agency nor, in point of fact, the President of the United 

States, can unilaterally extend these benefits to our Federal employees and retirees in the absence of law. That is why this legislation is absolutely critical and essential. 

So that has been confirmed now. I know there has been discussion over the years regarding whether this may or may not be possible. The conclusion is it is not. Not even the President has this 


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authority. It requires the passage of legislation by Congress, and 

that is why this Act is so important and critical. 

Senator COLLINS. Thank you for clarifying that. 

Mr. Hendrix, I noted in your testimony that you said that Dow 

Company offers benefits to both same-sex and opposite-sex couples 

who are in committed domestic relationships, and this brings up a 

difficult issue that I am going to turn to Mr. Berry and put him 

on the spot. 

Maine State employees receive employment benefits regardless of 

whether they are in same-sex or opposite-sex domestic partnerships, just as Dow does. 

There are some who would say that the reason our legislation 

does not do that is that opposite-sex domestic partners can gain eligibility by getting married; whereas, in most States, same-sex partners cannot do so. 

On the other hand, if our objective is to increase the recruitment 

and the retention of qualified, highest-quality employees, should we 

be drawing a distinction between two committed relationships 

based solely on the gender of the partner on whether or not it is 

same sex or opposite sex? Is it fair? If we are talking about fairness, is that a fair distinction for us to make? And I know I am 

treading on delicate ground here. Mr. Hendrix, let me start with 

you, and then I will go to Mr. Berry. 

Mr. HENDRIX. So it was a discussion, obviously, within Dow Company as we moved forward with it, but, again, if you are trying to 

recruit the best and the brightest and retain those once you have 

attracted them, it did not make sense for us to distinguish. So we 

were looking for parity between non-traditional and traditional relationships. What we were trying to do is establish a committed relationship and how do you move forward with that. 

Senator COLLINS. Mr. Berry, what is your view on this issue? 

Mr. BERRY. Well, Senator Collins, the Administration view is 

that right now this bill is correctly drawn in terms of a first step, 

and that the cost of this first step is one that we can manage and 

can offset over the course and term of the Administration. 

The cost of opening it, as you said, to opposite-sex couples in 

committed relationships does have a significant financial impact. 

At this point in time, the Administration feels that impact is of 

such a size and magnitude that we just cannot afford to make that 

step at this time. 

Right now the Administration is willing to support this for samesex couples. We would look forward to working with you and the 

Committee and the Congress in years forward as we identify the 

costs and cost offsets better, but you clearly have identified a fairness issue, and I think we need to keep open the possibility of exploring how we might be able to move forward with that in the future. 

Senator COLLINS. Mr. Hendrix, opponents of our bill raise the 

issue of fraud, of people trying to get benefits by pretending that 

they are in domestic partnerships and filling out the forms. That 

is less likely to be the case, they would argue, if someone is married because it is more easily checked to see whether people are 

married. 

Has this been a problem at your company, to your knowledge? 


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Mr. HENDRIX. No, it has not been a problem. I put in there rather ambiguously that fraud has not been an issue, but when we 

were searching, we could not find a case in our search, for the testimony here today. So I am sure it could happen. We have the policy 

with documentation required to limit that as a consequence. So, we 

think that we have got a good form in place and a good process 

that is keeping us from having issues with fraud. 

Senator COLLINS. Mr. Berry. 

Mr. BERRY. Senator Collins, I think it is a great point. I think 

what will be a significant difference between the public sector and 

the private sector on this is that under this legislation, if a Federal 

employee were to misrepresent this, there are criminal penalties. 

So this is a pretty serious charge, and we will be obviously enforcing it, just as we do now, through the use of our Inspector General, 

who regularly audits our benefit programs and checks to make sure 

that such fraud is not occurring. And so we do not face much fraud 

on this, and it is an area where we would not expect fraud, but we 

would clearly be on guard for it. 

We would ask our Inspectors General to use our oversight capacity to make sure that was not happening; and if it did, quite frankly, one or two cases would have quite a chilling effect on that fraud 

in that a criminal penalty would be substantial. And so I do not 

see this as a big threat or a deterrent to moving forward with this 

legislation. 

Senator COLLINS. Thank you. 

Chairman LIEBERMAN. Thanks, Senator Collins. Senator Akaka. 

Senator AKAKA. Thank you very much, Mr. Chairman. 

Director Berry, it is good to see you again, as always. 

Mr. BERRY. Yes, sir. 

Senator AKAKA. You testified that this legislation is needed to assist the government in recruiting new employees to the Federal 

workforce. Clearly, corporations and public employers who do offer 

domestic partnership benefits have a substantial advantage for recruiting the best and brightest gay and lesbian employees. 

Additionally, many young people today want to work in an inclusive and diverse environment. As you have suggested, these potential employees, regardless of sexual orientation, may prefer an employer that makes its commitment to inclusiveness clear in its personnel policies. 

Can you discuss whether there may be broader recruiting advantages that domestic partnership benefits might provide? 

Mr. BERRY. Thank you, Senator. Mr. Chairman, it is always such 

a pleasure to be with you and Senator Voinovich on your Subcommittee and talking about so many issues which we all care 

deeply and passionately about. 

You will recall from my confirmation hearing that when the 

President called and asked me to do this job, he said, ‘‘John, we 

have got to make government service cool again.’’ And I laughed, 

and I said, ‘‘Well, Mr. President, I just turned 50, so by definition, 

20-year-olds are going to do the opposite of what I say, and that 

will be closer to cool.’’ 

But in this case, this really has become a litmus test for this generation. I know because I have been out talking with college students in our recruitment and job fairs. Quite frankly, this comes 


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up as a regular question: ‘‘Why doesn’t the Federal Government do 

this?’’ And I am at a real disadvantage in responding. 

It is a competitive world out there with the private sector and 

with State and local governments. As you know from the Committee, we have between 10 and 20 positions for which we issue direct-hire authority to agencies so that they do not even have to follow the competitive process, because we have been unsuccessful in 

recruiting enough applicants for those jobs that we need to fill. 

A good example of that is veterinarians at the Food and Drug 

Administration. We cannot hire them right now. And so in guaranteeing the food safety of the Nation, we are having a hard time hiring people because we cannot effectively compete with Dow and 

other companies who snatch those people up before we do. 

That is a growing problem. Even with the economy, as dark as 

it has been, we are still facing these problems with veterinarians, 

engineers, doctors, nurses for our Department of Veterans Affairs 

(VA) hospitals. We are not competitive. Proof of that is that I issue 

direct-hire authority to agencies so they do not even have to advertise or compete for the job. In other words, if the VA finds a nurse 

and they are walking and breathing, they can hire them on the 

spot. They do not have to go through the paperwork. Well, that is 

proof that we are having trouble competing and that we are not effectively recruiting among those populations. 

Will this solve that problem? No, it is not a silver bullet that will 

solve everything. But it is one more tool in our tool belt that can 

help us, as people might be thinking about whether this employer 

is progressive or not. They may not be an LGBT person. They may 

not have a domestic partner of the same sex. They are looking at 

it as: Is the Federal Government a progressive employer? And right 

now you would have to conclude, if that was their test, no. They 

would look for people here who, quite frankly, would also pay them 

more. And so we are losing good people. 

So this is a good tool. It would be a great tool for us to have. It 

is not an expensive tool to have, and I think it will be very helpful, 

sir. 

Senator AKAKA. Thank you very much, Director Berry, for your 

positive response. 

Dr. Hendrix, you talked a bit about that issue in your testimony. 

I would like to hear more about how Dow Chemical Company’s domestic partnership benefits program has affected its ability to recruit individuals who are not gay or lesbian? 

Mr. HENDRIX. Yes, I am quite happy to do that—although you 

have done a very good job of summarizing it, Mr. Berry. 

It is a litmus test. It is a very different situation when you are 

interviewing 20-year-olds right out of college, and this is one of the 

checks that they look for, for a company that they might want to 

be a part of. It gets back to, ‘‘Is the company going to look out for 

us as a whole, me as a whole? So it may not be something I particularly want to take advantage of, but I know that it is something 

that as a whole, it is a great benefit to have.’’ 

The other issue was flexible work hours that we mentioned. It 

is a policy we have had for several years as well. These are the 

types of things that younger recruits are now looking at. 


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We also have good examples where we had lost employees, so 

this is another reason. It is a lot more expensive to retain a good 

employee than it is to attract a new one, and so when you see one 

or two people leaving and that is the reason—and Representative 

Baldwin also pointed that out—that opens up a lot of eyes. 

So it is definitely there. We do feel it offers us the competitive 

advantage. 

Senator AKAKA. Let me ask this question of Director Berry. As 

Senator Collins mentioned, in July, at the President’s request, you 

issued a memorandum directing agencies to review the benefits 

they offer to employees and determine which of those benefits could 

be extended to same-sex domestic partners without legislation. You 

instructed the agencies to report back by September 15, 2009. 

Please comment on the information OPM received and any recommendations you made to the President, if you can, based on this 

information. 

Mr. BERRY. Thank you, Mr. Chairman. The good news that I am 

here to report is that the agencies have all responded to that request. Our staff is now going through those responses and preparing a report that will go to the President. We have not completed that review of the agency response yet, but that is underway. 

The good news is that everyone did respond. We are wading 

through that information right now and looking at what might be 

able to be done administratively and what might also require additional legislation. We will be sure to report back to you and the 

Chairman and the Ranking Member as to the results of that as 

soon as that work is completed. It is underway right now. 

Senator AKAKA. Thank you very much for your responses. They 

are helpful. Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thanks, Senator Akaka. 

Thanks, Director Berry and Dr. Hendrix. I think your testimony, 

Congresswoman Baldwin’s, and the exchanges we have had have 

really been very constructive and very informational. I think people 

will continue to come back to the estimate of the cost and all the 

benefits that come from those incremental costs and the comparison to the other expenditures that the Federal Government makes 

to recruit, retain, and increase productivity. And I think the fraud 

question will come up also, but you have handled it very well. 

So it is our intention to mark this bill up at our Committee 

markup in either November or December, to get it out to the floor 

of the Senate by the end of the year, and hope that we can then 

take it up sometime early in the next year, which would be a step 

forward, and hopefully be in time for you to put it to work. I thank 

you for your testimony. 

Senator Collins, would you like to say anything in conclusion? 

Senator COLLINS. Thank you. I just want to echo your comments 

by thanking our witnesses today. 

Chairman LIEBERMAN. Thanks very much. Yes, Mr. Berry? 

Mr. BERRY. Mr. Chairman, just in the interest of full disclosure, 

since Congresswoman Baldwin did it as well, I also would personally stand to benefit from this legislation, so I would like to just 

disclose that to the Committee in that my partner does not work 

for a company that provides this benefit and so would be likely to 


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take this benefit if it were offered by the Federal Government. And 

so I also would just like to disclose that for the record. 

The other thing I would like to mention, Mr. Chairman, if I could 

before you close, is that if it is of assistance to you and the Ranking 

Member, I think now that working together we will be able to identify efficiencies to fully offset the cost of this legislation over the 

term of the Administration. And so if you need a commitment or 

a promise to that effect, I am happy to deliver that, that we will 

work with both parties to find efficiencies and improvements that 

we can both agree on that will not damage Federal employees, not 

restrict benefits in any other way, but fully cover the cost of this 

program. 

Chairman LIEBERMAN. That is a very constructive suggestion because, otherwise, we would have to fund it incrementally in the 

next fiscal year beginning October 1st of next year, assuming we 

can get it passed next year, which I hope and believe we can. But 

all the better if we can say it is deficit neutral because you have 

identified some savings. I appreciate that. 

Dr. Hendrix, do you want to say anything in conclusion? 

Mr. HENDRIX. Well, I guess I should go for full disclosure, too, 

and tell you that my partner of 28 years takes advantage of the 

Dow benefits. [Laughter.] 

And it is of great peace of mind to us, and I hope one day that 

the U.S. Government will also be able to do that. So thank you. 

Chairman LIEBERMAN. I appreciate your saying that. 

I do not believe that there is any need for you to recuse yourself 

from this, Mr. Berry, as a result—— [Laughter.] 

No, I guess it also says that we are lucky to have attracted you 

to public service, notwithstanding that inequitable burden that you 

have been dealing with, and your partner has. But the record of 

the hearing will stay open for 15 days, as is our custom, for additional statements or questions. I thank all of you very much, and 

with that, the hearing will stand adjourned. 

[Whereupon, at 11:16 a.m., the Committee was adjourned.] 


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