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The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 22 attorneys engaged exclusively in employee benefits, estate planning and employment law. Six of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.






Contact Info

The Wagner Law Group


  Integrity | Excellence


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104







February 5, 2015


 Health and Welfare Law Alert




 Exclusion of Same-Sex Spouse Doesn't

Violate ERISA




A Federal Court of Appeals has recently determined that a self-insured employer health plan that explicitly excludes same-sex spouses from coverage did not violate ERISA. In Roe v. Empire Blue Cross Blue Shield, the Second Circuit upheld a district court's dismissal of a plaintiff's claim that a group health plan's exclusion of same-sex spouses violated ERISA's benefit interference provision (i.e., Section 510). The Second Circuit also dismissed the plaintiff's breach of fiduciary claim under Section 404 of ERISA.


Background. An employee attempted to add her same-sex spouse to her employer's group health plan. The health plan at issue did not define "spouse" but did expressly exclude same-sex spouses and domestic partners. When the coverage request was denied, the couple sued, claiming that, by declining to cover the spouse, the employer had impermissibly interfered with the attainment of benefits as determined under the Supreme Court's U.S. v. Windsor decision. (See the Alert of 6/27/13.)


NOTE: In order to prevail on a benefit interference claim under ERISA Section 510, a plaintiff must show (i) that the employer took adverse employment action against an employee in retaliation for the employee's assertion of an ERISA right; or, (ii) that the employer interfered with the employee's attainment of an ERISA right.


District Court. The district court dismissed the plaintiffs' benefit interference claim because the couple made no allegation that the employer took an adverse employment action in relation to the employee's assertion of an ERISA right under the plan. In fact, the court found that the plaintiffs failed to allege any ERISA right to which they are or would become entitled under the plan. The court noted that ERISA Section 510 prohibits interference with the employment relationship and that the employee was still employed by the employer and had suffered no adverse employment action.


After holding that the exclusion did not violate ERISA's benefit interference provision, the court proceeded to dismiss the couple's breach of fiduciary claim because it was based on an argument that enforcing an unlawful plan term amounted to a breach of fiduciary duty. In turn, the plaintiffs appealed to the Second Circuit.


Second Circuit. On appeal, the Second Circuit held that the district court properly dismissed the plaintiffs' claims because the couple failed to allege: (i) any ERISA right to which they are entitled, or may become entitled, under the plan that resulted in discrimination or interference; and (ii) the defendants had acted in a fiduciary capacity or had breached any fiduciary duty under ERISA.


Impact of Decision on Employers. It should be noted that there are no federal rules preventing discrimination based on sexual orientation, and it is likely that any state laws of this nature (other than state insurance laws) would be preempted by ERISA. However, HHS has announced that, beginning in 2015, health insurance issuers that offer coverage to opposite-sex spouses must provide policyholders with the option of offering identical coverage to same-sex spouses. See the 3/27/14 Alert for further details.


Employers that are considering such an exclusion for their self-funded plans should recognize that this decision is expressly limited to consideration of the ERISA claims and that both the district court and Second Circuit declined to answer whether the exclusion is valid under any other federal or state law.  





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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.