Overview of U.S. v. Windsor and its Effect on Employee Benefits

The Supreme Court's decision in United States v. Windsor has had a major impact on employee benefits issues affecting same-sex couples.

In Windsor, (133 S. Ct. 2675 (2013)) the U.S. Supreme Court struck down Section 3 of the federal Defense of Marriage Act (DOMA), ( Pub. L. 104-199, 110 Stat. 2419 (Sept. 21, 1996)) which defined “marriage” and “spouse" wherever those terms appear in federal statutes and regulations to include only opposite-sex marriages and opposite-sex spouses. After Windsor, the Internal Revenue Service and the Department of Labor have made clear that for purposes of federal tax law and the Employee Retirement Income Security Act, which govern many employee benefit plans, the terms “spouse” and “marriage” as used in the tax code and ERISA include all legally married same-sex spouses, regardless of whether a same-sex married couple lives in a state that recognizes same-sex marriages.

This report provides background on DOMA and the Windsor decision, subsequent guidance from federal agencies, and a discussion of Windsor‘s impact on ERISA-governed employee benefits plans.

Impact of Windsor on ERISA-Governed Group Health Plans—Availability of Coverage

If a private employer chooses to sponsor an employee health plan, then it can draft plan terms providing who is an eligible dependent of an employee for purposes of receiving health benefits. As noted above, ERISA does not require a group health plan to provide health benefits to employees' spouses, opposite-sex or same-sex. Thus, an employee does not have an ERISA claim that a plan that provides benefits to opposite-sex spouses must provide benefits to same-sex spouses.1


1 See Roe v. Empire Blue Cross Blue Shield, No. 12-cv-04788 (NSR), 2014 BL 124278 (S.D.N.Y. May 1, 2014) (holding that plan exclusion of same-sex spouses and domestic partners did not violate ERISA, but noting that the plaintiffs had not raised “whether the Exclusion was lawful under other federal laws”).  


Practice Tip: Employees may be able to bring claims under Title VII for sex discrimination if an employer covers opposite-sex spouses but not same-sex spouses under its health plan.        

Those seeking to challenge plan terms that exclude same-sex spouses may have a sex discrimination claim under federal antidiscrimination law, such as Title VII of the Civil Rights Act of 1964, however.2 In addition, the current proposed version of the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination in employment on the basis of sexual orientation and gender identity, does not contain the exclusion that was in prior versions for employee benefit plans.3


2 Title VII prohibits discrimination “because of sex,” and the Supreme Court held many years ago that sex stereotyping is impermissible discrimination in violation of Title VII. SeePrice Waterhouse v. Hopkins, 490 U.S. 228 (1989). Historically, courts dismissed Title VII claims brought by gay and lesbian employees, concluding that such claims were not covered by Title VII. In the last few years, however, the EEOC has held that claims of sex stereotyping brought by gay and lesbian federal employees state sex discrimination claims under Title VII. SeeMacy v. Dept. of Justice, EEOC Appeal No. 0120120821 (E.E.O.C.) (Apr. 20, 2012); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (E.E.O.C.) (Dec. 20, 2011); Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (E.E.O.C.) (July 1, 2011). A federal district court recently held that a gay employee sufficiently pled a claim for sex discrimination under Title VII, concluding that as a gay man, the employee's “sexual orientation was not consistent with the defendant's perception of acceptable gender roles.” Terveer v. Billington, No. 12-1290 (CKK), 2014 BL 88587 (D.D.C. Mar. 31, 2014). While at least one case has been filed alleging a claim of sex discrimination based on the exclusion of same-sex spouses in an employee benefit plan, these issues have not been fully litigated. SeeHall v. BNSF Railway Co., No. 13-02160 (W.D. Wash.) (filed Dec. 3, 2013) (alleging that employer's refusal to enroll employee's same-sex spouse in health plan violates the Equal Pay Act, which prohibits sex discrimination).                       

3 The current version of ENDA was passed by the Senate on Nov. 7, 2013. Seehttps://www.govtrack.us/congress/bills/113/s815/text.  


Insured group health plans that provide benefits to opposite-sex spouses may be required by state law to provide benefits to same-sex spouses. States may regulate insured ERISA plans indirectly by regulating insurance.4 Some states require that insured health plans that provide benefits to opposite-sex spouses also provide benefits to same-sex spouses and/or domestic partners.5


4 ERISA contains a wide-reaching preemption clause in which ERISA supersedes “any and all state laws” that relate to employee benefit plans, except state laws that regulate insurance, banking or securities. ERISA §514, 29 U.S.C. §  1144. This “insurance savings clause” allows states to regulate insured ERISA plans indirectly by regulating the terms of insurance policies.               


See, e.g., California Insurance Equality Act, California Insurance Nondiscrimination Act, codified at Cal. Health & Safety Code § §  1374.58(a), 1374.58, 1367.30, Cal. Ins. Code § §  381.5(a), 10112.5, 10121.7; Minnesota Administrative Bulletin #2013-3 (July 31, 2013), available at http://mn.gov/commerce/insurance/images/Insurance_Bulletin2013-3.pdf; State of Connecticut Insurance Dep't, Bulletin IC-21 (rev. July 10, 2009), available at http://www.ct.gov/cid/lib/cid/BullIC21rev.pdf. Washington state officials issued a letter in June 2014 stating that providing health care coverage to opposite-sex spouses but not same-sex spouses violates Washington state law. See Letter from the Washington Attorney General, Washington Insurance Commissioner, and Washington Human Rights Commission (June 5, 2014), at http://www.atg.wa.gov/uploadedFiles/Insurance%20Equality%20Letter%20FINAL.pdf. The Washington state agencies said that this applies not only to insured plans, but to self-funded plans, stating that “The federal preemption provisions in ERISA, likewise, cannot be used to carve out marriages recognized in Washington state for unequal treatment by excluding them from healthcare benefits that are otherwise provided to other married couples in this state.” Frequently Asked Questions, Washington States Joint Letter on Health Coverage for Same-Sex Spouses (June 5, 2014), at http://www.atg.wa.gov/uploadedFiles/FAQ%20Insurance%20Equality%20FINAL.pdf.


If an ERISA-governed health plan chooses to provide health benefits to employees' spouses, certain rights (described below) are afforded under ERISA to those spouses.

Report authored by Julie Wilensky. Julie Wilensky is an attorney at Lewis, Feinberg, Lee, Renaker & Jackson P.C. in Oakland, California. Julie Wilensky would like to acknowledge the contributions of Teresa S. Renaker and Nina Wasow to this report, and Katherine Utz Hunter, who wrote an earlier version of this report.

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Excerpted from a report that ran in the Benefits Practice Resource Center’s Benefits Practitioners’ Strategy Guide (07/2014).