As we noted in our June 26, 2015 blog in response to Obergefell v. Hodges, the Supreme Court’s decision on same-sex marriage does not change the ERISA rules which permit employers to have health plans1 that do not cover same-sex spouses.
However, since the decision on Obergefell questions have arisen as to whether Title VII of the Civil Rights Act of 1964 might require employers to provide health benefits to same-sex spouses on the same basis as opposite-sex spouses. Title VII protects employees from employment discrimination based on sex. On the face of things, this would not include discrimination based on whether a person’s spouse is the same or the opposite gender, assuming the same rule applies equally to male and female same-sex spouses. Note, however, that the EEOC, which enforces Title VII, has taken a proactive stance on issues affecting LBGT workers. In its 2012 Strategic Enforcement Plan for 2013 – 2016, the agency identifies “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” as an enforcement priority.
In practice, EEOC has focused more on cases involving transgender individuals. However, employers should be alert for any shift in agency enforcement activities.
1This should not be confused with federal retirement plan rules which have required recognition of same-sex spouses since the Supreme Court struck down the Defense of Marriage Act in United States v. Windsor.