Tuesday, July 3, 2007

Request for Amicus Participation in ERISA/Employment Discrimination/Arbitration Case

Gavel Judge Nancy Gertner, of the District Court of Massachusetts, has sent us a request for amicus participation in a case before her.  The case is Massachusetts Nurse Assoc. v. Essent Healthcare of Massachusetts, Inc.

Here is a brief summary of the facts:

In this case, a Massachusetts-based employer has extended health insurance benefits, under an ERISA-covered employee welfare plan, to “legal spouses” of employees, but has expressly limited that coverage to legal spouses “of the opposite sex.” This policy was the subject of arbitration between the employer and a labor organization representing employees at the employer’s workplace. The arbitrator determined that the policy does not violate the terms of a collective bargaining agreement in place between the employer and the labor organization. The case comes to the Court on appeal from the arbitrator’s decision.

The courts poses two question to potential amici:

1. Is there is a “clear public policy” against sexual preference discrimination and/or in favor of same-sex marriage in Massachusetts, that meets the standards of Eastern Associated, 531 U.S. at 62, and if so, what are its sources in positive law, i.e. regulations, statutes, constitution, jurisprudence?

2. Is that state public policy – if it exists – preempted by the breadth of ERISA preemption? 29 U.S.C. § 1144(a). Is there any difference in the reach of the
ERISA preemption clause when it is applied to an area - marriage - that is traditionally a core area of state authority, as compared to when it is applied to preempt state laws concerning other forms of discrimination, as in Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983),
Air Transp. Ass'n of Am. v. City & County of San Francisco, 992 F. Supp. 1149, 1172 (N.D. Cal. 1998), or Catholic Charities of Me., Inc. v. City of Portland, 304 F. Supp. 2d 77, 90-93, 96 (D. Me. 2004). Can ERISA preempt a provision of a state constitution?

Amicus briefs are due August 1, 2007.  The full Request for Amicus Briefing is here.



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Tracked on Jul 5, 2007 8:01:54 AM


I have never before seen a federal district court judge request amicus and I am glad to see that she is seeking amicus support from law professors. The case certainly presents an important and difficult issue.

Mitchell H. Rubinstein

Posted by: Mitchell Rubinstein | Jul 3, 2007 9:23:46 AM

Judge Gertner's posing of the first question seems to reflect some confusion. The line of cases ending with Eastern Associated on the public policy exception to the presumed enforcement of arbitration awards are about when the CBA cannot be used to require an employer to violate public policy. Here, the arbitrator only held that the CBA does not prohibit what the er did. No federal court is empowered to require an arbitrator to interpret a CBA to make its provisions accord with external law, federal or state. For instance, if the er had a health plan that discriminated on the basis of race and the CBA had no anti-discrimination clause, a judge could not enforce Title VII on review of an arbitration decision that found no violation of the CBA. Therefore, if this er action violates Mass. law, it should be attacked in an action brought under Mass. law, not on review of an arbitration decision interpreting the CBA.

Whether the application of such law to an ERISA regulated plan is preempted by ERISA is the second question, which may be more difficult, though I think not. In any event, she should not even be getting to this question.

Posted by: Michael Harper | Jul 3, 2007 10:45:26 AM

The ERISA preemption question is very interesting, indeed. Judge Tauro's recent ERISA preemption decision, which I blogged about within the past week, rejects the application of Massachusett's law against sexual orientation discrimination to a private employer's employee benefits plan on the issue of partner benefits. the question whether the application of the state's marriage law is similar preempted should give some pause, because the marriage law, as such, could hardly be said to "relate to" an employee benefit plan. On the other hand, without having looked at the Massachusetts marriage law, I rather doubt that it provides that employers must provide benefits to the spouses of their employees; this has traditionally been a matter of custom or collective bargaining, and since the enactment of ERISA, I would imagine that any attempt to compel benefits as a matter of state law would be found preempted. The fact that marriage rights were extended in Massachusetts as a result of state constitutional litigation should make no difference. State constitutional provisions are preempted by federal law the same way any state statute or regulation might be preempted, by virtue of the Supremacy Clause.

It is surprising to have a judge reach out to a bunch of law professors for an amicus brief. Can it be that she believes, based on the submissions from the litigants, that no party is presenting arguments on behelf of the employees who have been denied the benefits, and that the litigants (including the union) have no interest in soliciting amicus briefs themselves? (I would have thought that Gay & Lesbian Advocates & Defenders would be up to their eyebrows in this case....)

Posted by: Art Leonard | Jul 3, 2007 11:21:58 AM

I would like to here the response to the request, where can i find that?
I am in a like situation in CA with an self funded plan is claiming preemption from ERISA. Cal has several sexual orientation anti discrimination statutes. ab2208 may be preempted, but i doubt gov code 12940 & fam code 297.5 will.
Any thoughst on my situation?

Posted by: RG | Feb 11, 2008 4:28:19 PM

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