You already know that the Defense of Marriage Act (DOMA), which prohibited recognition of same-sex marriages, was declared unconstitutional.  United States v. Windsor, 133 S.Ct. 2675 (2013)

In states recognizing same-sex marriages, ERISA benefits, like life and disability benefits provided through insurance contracts, will most likely be viewed as covering a same-sex spouse.

But does the same apply to self-funded ERISA plans?  Maybe not.

Here’s the case of Roe and Doe v. Empire Blue Cross Blue Shield and St. Joseph Medical Center, __ F.Supp. 2d __, (S.D.N.Y May 1, 2014).

FACTS: New York recognizes same sex marriages, and Jane Roe and Jane Doe were married. St. Joseph Medical Center’s health plan for employees is self-insured and states: “Same sex spouses and domestic partners are NOT covered under this plan.” Roe sought to add Doe to the plan, which was rejected. Plaintiffs sued claiming defendants violated Section 510 of ERISA entitled “Interference with protected rights.”

ISSUE: Whether ERISA prohibits a private employer from excluding same-sex spouses?

DISTRICT COURT HELD:

  1. “ERISA…is not a dictator of plan terms.” Op. at 10.
  2. ERISA does not contain an anti-discrimination provision “because other federal laws already proscribed such discrimination.” Op. at 10.
  3. An ERISA plan “may, for example, choose not to provide benefits to spouses at all.”  Op. at 11.
  4. The clear import of United States v. Windsor [133 S.Ct. 2675 (2013)] is a shift in federal policy toward enforcing state laws that recognize same sex marriage.  Op. at 13.
  5. The exclusion [‘Same sex spouses and domestic partners are NOT covered under this plan.’] does not violate Section 510 of ERISA as it is currently promulgated.” Op. at 14 (Emph. added).

NOTE:  Look for self-funded plans, containing an exclusion against same-sex spouses,  to rely on this case.  Plans with that exclusion will argue that ERISA does not require employers to cover same-sex spouses under the plan.

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Photo of Mike Reilly Mike Reilly

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment…

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment advice, and has represented clients in more than 75 jury trials, arbitrations, bench trials and claims before the EEOC and Washington State Human Rights Commission.

Small and large employers retain Mike for his strategic advice and decades of experience in employment issues and litigation, business decisions and litigation avoidance. Mike provides advice in claims involving discrimination, retaliation, wrongful discharge, disability accommodation, ERISA and non-ERISA employee benefit claims, and wage/hour claims. He served as lead counsel in an employee raiding/trade secret case as reported in the Wall Street Journal, and defends employers in class action claims.

Mike’s remarks on employment issues have been quoted in NewsweekCorporate Legal TimesSeattle TimesEmployee Relations Law JournalPuget Sound Business JournalCFO.com, and other professional journals and management publications. Chambers USA’s Guide to America’s Leading Lawyers for Businessrates Mike in the top ranking (band one) for his work in labor and employment law, and has described him as “one of Seattle’s top-rate attorneys” who is “truly phenomenal [with] superb legal instincts” and “an amazingly assertive litigator.” His clients include Nordstrom, Seattle Seahawks, Home Depot, KeyBank, Starbucks, Fred Hutchinson Cancer Research Center, Red Robin and Seattle Chamber of Commerce, among others.