In Roe v. Empire Blue Cross Blue Shield, a federal district court addressed the issue of whether a self-funded health plan could include language that denied dependent coverage to same-sex spouses without violating Section 510 of the Employee Retirement Income Security Act of 1974 (“ERISA”). After taking into account the Supreme Court’s landmark decision in U.S. v. Windsor, the Court in Roe held that the plan’s coverage provision did not violate Section 510 of ERISA.
In U.S. v. Windsor, the Supreme Court struck down a provision of the Defense of Marriage Act that required same-sex spouses to be treated as unmarried for purposes of federal law because it violated the constitutional equal protection guarantee. Following the Supreme Court's decision, the Internal Revenue Service (“IRS”) issued guidance on the federal tax implications of the Windsor decision. In Revenue Ruling 2013-17, the IRS provided that same-sex couples who were legally married in jurisdictions that recognize their marriage will be treated as married for federal tax purposes, regardless of whether their state of residence recognizes same-sex marriage. The IRS and Department of Labor have issued guidance on Windsor, but the guidance has not addressed the issue in Roe.
The plaintiffs in the case filed a claim under Section 510 of ERISA, which makes it unlawful for a person to take adverse action or discriminate against a participant or beneficiary in an ERISA plan for exercising their rights under the employee benefit plan or interfering with the attainment of a right to which a participant may become entitled under the plan. The plaintiffs had married in New York, which recognizes same-sex marriages. One of the plaintiffs was provided benefits under a self-funded group health plan, which specifically stated that same-sex spouses were not covered under the plan. During open enrollment, the employee plaintiff tried to add her same-sex spouse to the plan. Following the claims and appeals procedure in the plan, the plan administrator ultimately refused to provide the coverage.
The question before the court was whether Section 510 of ERISA prohibits a private employer from excluding same-sex spouses from the definition of “spouse” under a welfare benefit plan. Generally, plan sponsors are free under ERISA to establish the terms of their plan. ERISA does not regulate the substantive content of welfare benefit plans or mandate that employers provide any particular benefits. In ruling that there was no violation of Section 510, relying on legislative history, the Court noted that discrimination is a matter correctly addressed under other federal laws. The plaintiffs had also argued that the plan administrator breached its fiduciary duties under ERISA by refusing the coverage, but the Court noted that no fiduciary duty would be breached as a result of the fiduciary following the terms of the plan.
While the decision provides guidance under ERISA, it is important to note that plaintiffs in other cases may bring claims under other laws including federal or state anti-discrimination laws. They may also attempt to craft different claims under ERISA. A different court, considering different claims, might be more receptive to a claim challenging the limitation of coverage for same-sex spouses.