In Roe v. Empire Blue Cross Blue Shield, No. 12–cv–04788 (NSR), 58 EBC 1077, 2014 WL 1760343 (S.D. N.Y. May 1, 2014), the United States District Court for the Southern District of New York held a self-insured health plan that excludes same sex spouses does not violate the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The decision emphasizes the need for clear guidance from the EEOC with respect to the rights of same sex spouses to be offered group health care coverage when an employer offers such coverage to opposite sex spouses.
St. Vincent’s Hospital (“Hospital”) sponsors a self-funded health plan (the “Plan”) covered by ERISA. Opposite-sex spouses are eligible for Plan coverage, but same sex spouses are not.
Jane Roe was employed by the Hospital since 2007. She married Jane Doe after New York enacted its Marriage Equality Act. Thereafter, she asked the Plan to add Jane Doe to her coverage. The Plan denied the request on the basis that the Plan’s terms provided “[s]ame sex spouses and domestic partners are NOT covered under this plan” (emphasis in Plan document).
Jane Roe and Jane Doe sued the Hospital and its third party administrator Empire Blue Cross Blue Shield (“Blue Cross”). They sought an injunction that would prevent the Plan from enforcing the same sex spouse exclusion and also sought to enjoin Blue Cross from enforcing such a provision in all plans administered by Blue Cross, including plans of other employers.
The plaintiffs argued ERISA requires the Plan to follow the New York Marriage Equality Act in light of the Supreme Court’s opinion in U.S. v. Windsor, 133 S.Ct. 2675 (2013). The Hospital responded that ERISA preempts the New York law. 1 The court sidestepped this issue and instead framed the question to be “whether a private plan violates a provision of ERISA by excluding same sex couples from beneficiary status.”
The plaintiffs claimed the exclusion for same sex spouses violates ERISA § 510, which for relevant purposes here, generally makes it unlawful for any employer to discriminate against a participant or beneficiary for exercising his or her benefit rights or to interfere with the attainment of any benefit right. The court rejected this argument. In doing so, the court found that the case law of the Second Circuit requires interference with an employment relationship in order to find a 510 violation. The court noted that other Courts of Appeal view ERISA Section 510 more broadly than the Second Circuit. Accordingly, it appears plaintiffs’ 510 claim may have better success in other circuits.
The Southern District of New York found in Roe that section 510 “has consistently been excluded from application to allegedly discriminatory plan terms, especially by courts in this Circuit.” The court ruled that “ERISA gives employers broad discretion in writing the terms of welfare benefit plans and Section 510 does not apply to the facts of this case because there has been no adverse employment action.”
The court made it clear that it was not ruling on whether plans that exclude same sex couples from the definition of spouse are constitutional, and was not addressing whether the exclusion is lawful under other federal laws. Notably, the case did not involve a Title VII claim. Instead, the court declared that its opinion “holds only that the [same sex spouse exclusion] does not violate Section 510 of ERISA as it is currently promulgated.”
This decision emphasizes the need for clear guidance from the EEOC with respect to the rights of same sex spouses to be offered group health care coverage when an employer offers such coverage to opposite sex spouses. Courts have held that Title VII does not prohibit discrimination on the basis of sexual orientation, but the EEOC has been aggressively pursuing claims based upon sex stereotyping and other gender-based theories of discrimination. It is not clear whether there is a potential federal cause of action against an ERISA self-insured plan that excludes coverage for same sex spouses.
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Note that self-funded plans are not subject to state insurance laws. For example, state insurance laws can require insured plans, even ERISA-covered insured plans, to cover same-sex spouses. But such state laws or regulations would not apply to self-funded plans.