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NOTES
Joel M. Nolan**
109
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INTRODUCTION
The struggle for equality in the United States is consistent throughout
our history and the mantra of equal treatment under law is deeply rooted
in civic discourse.1 Over the last decade, this rallying cry has been
employed in the campaign for recognition of same-sex relationships.2 As
these relationships gain legitimacy under state law through marriage and
civil union status, they remain unprotected under federal law.3 Indeed,
same-sex spouses who are legally married in Massachusetts have the
benefit of protection under state law, but cannot avail themselves of over
1,100 federal rights and benefits afforded to their opposite-sex
counterparts.4
This discrepancy becomes evident in the employment context where
many individuals in same-sex marriages, which are sanctioned under state
law, are unable to secure coverage for their spouses because their
employers are not mandated to recognize their relationships under federal
law.5 The roadblock is the Employee Retirement Income Security Act of
1974 (ERISA),6 which preempts state employment laws that relate to
employee benefits.7
This difficulty has been mitigated in Massachusetts, where, as a result
of the Supreme Judicial Courts groundbreaking decision in Goodridge v.
Department of Public Health, same-sex couples can become legally
married.8 Same-sex couples who do enter into state-sanctioned marriages
find some protection in employment because an employer with insured
employee benefit plans must extend equal opportunities to same-sex
1. James A. Sonne, Love Doesnt Pay: The Fiction of Marriage Rights in the
Workplace, 40 U. RICH. L. REV. 867, 867 (2006).
2. See Janice Kay McClendon, A Small Step Forward in the Last Civil Rights Battle:
Extending Benefits Under Federally Regulated Employee Benefit Plans to Same-Sex
Couples, 36 N.M. L. REV. 99, 99 (2006).
3. Id.
4. Id. at 99-100.
5. Id.
6. Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001 (2000).
7. See id. 1144(a) (ERISAs preemption clause).
8. Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003) ([B]arring
an individual from . . . civil marriage solely because that person would marry a person of the
same sex violates the Massachusetts Constitution.).
NOLAN. FINAL 1/7/2008 10:24:23 PM
19. MASS. GEN. LAWS ch. 151B, 3 (2006); MASS. GEN. LAWS ch. 6, 56 (2006)
(creating the Massachusetts Commission Against Discrimination).
20. MASS. GEN. LAWS ch. 151B, 3(5)-(6).
21. Id. 3(6)-(7).
22. Claims with these characteristics are presently before the MCAD for adjudication.
See, e.g., Whitehead-Pleaux v. Shriners Hosp. for Children, 04BEM01593 (Mass. Commn
Against Discrimination filed June 16, 2005); see also Webster v. Partners Health Care Sys.,
05BEM01596 (Mass. Commn Against Discrimination filed June 14, 2005). The MCADs
ability to investigate the Webster claim was challenged by the respondent and was heard by
the U.S. District Court for the District of Massachusetts. Partners Healthcare Sys., Inc. v.
Sullivan, No. 06-11436-JLT, 2007 WL 1810218 (D. Mass. June 25, 2007) (holding the
MCAD is enjoined from investigating claims of state-law discrimination under ERISA-
governed employee benefit plans). See infra Part IV.B-C, for a discussion of the relevant
analysis presented in this case.
23. A self-funded plan is one in which the employer assumes fiscal responsibility for the
benefitit is not an insurance contract. See infra Part IV.
24. MASS. GEN. LAWS ch. 151B, 4(1) (2006).
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described above and argues that such claims can and should survive
preemption. Part VI concludes the analysis and calls for the MCAD to
uphold state anti-discrimination laws by fighting for its ability to adjudicate
claims of discrimination in the administration of ERISA-governed
employee benefit plans under state law and by issuing favorable outcomes
to claimants seeking spousal recognition in their employee benefit plans
without regard to sexual orientation.
of uniformity in an area where decisions under the same set of facts may
differ from state to state.32
A. ERISAs Scope
Overall, ERISA was designed to simplify and unify33 employee
benefit plan regulation and to eliminate[] the threat of conflicting or
inconsistent State and local regulation.34 The legislature created
substantive regulations that preempt any and all state law relating to
covered benefit plans to achieve this end.35
Plans subject to ERISA legislation are of two types: pension plans
and welfare plans.36 Pension plans provide retirement benefits while
welfare plans provide fringe benefits, such as medical, dental, and vision
insurance.37 Pension plans include benefits that provide retirement income
or result in income deferral regardless of how the plans calculate
contributions or distribute benefits.38 The term welfare plan is more
inclusive and covers those plans established for its participants or their
beneficiaries to provide benefits including, but not limited to, medical care,
support upon sickness, disability, unemployment, vacation time,
scholarship funds, prepaid legal services, or any other such perquisites.39
Under ERISA, the term employee benefit plan is inclusive of both
types such that a covered plan may be a pension, a welfare plan, or both.40
Determining if a benefit is considered a plan under ERISA has been a
source of much litigation.41 In Donovan v. Dillingham, the Eleventh Circuit
Court of Appeals established a test to determine if benefits qualified as an
employee benefit plan. The test looked for four characteristics: intended
benefits, intended beneficiaries, a source of financing, and a procedure to
32. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11 (1987) (Pre-emption ensures
that the administrative practices of a benefit plan will be governed by only a single set of
regulations.) (quoting H.R. RPTR. NO. 93-533, at 12 (1973)).
33. McClendon, supra note 2, at 107.
34. Fort Halifax, 482 U.S. at 9 (quoting 120 CONG. REC. 29197 (1974) (statement of
Sen. Williams)).
35. McClendon, supra note 2, at 107 (describing ERISAs preemption clause).
36. Jeffrey G. Sherman, Domestic Partnership and ERISA Preemption, 76 TUL. L. REV.
373, 392 (2001).
37. Id. at 392-93.
38. 29 U.S.C. 1002(2)(A) (2000). Several models for the calculation of pension plans
are feasible under ERISA, subject to the statutes substantive provisions regarding
participation and vesting, funding, and fiduciary responsibility. See id. 1051-1114 (parts
II-IV of ERISA).
39. 29 U.S.C. 1002(1) (2000).
40. Id. 1002(3).
41. Sherman, supra note 36, at 395.
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apply for and collect benefits.42 This test has been affirmed in every
federal circuit that has addressed the issue.43
In Fort Halifax Packing Co. Inc. v. Coyne, the Supreme Court did not
find the existence of an employee benefit plan when examining a state law
that required employers to provide severance benefitsthe single payment
event did not create an employee benefit plan.44 In Massachusetts v.
Morash, the Court again declined to find the existence of an employee
benefit plan where an employer paid liabilities incurred from a vacation
accrual policy from their general funds, and not funds specifically reserved
to pay compensated employees for the unused portion of these benefits.45
These decisions narrow the scope of those employer activities considered
to constitute an employee benefit plan because more than either a single
payment event or payments made from general employer funds are
required for a plan to fall within ERISAs scope.46
42. 688 F.2d 1367, 1372 (11th Cir. 1982); accord Sherman, supra note 36, at 395.
43. Kenney v. Roland Parson Contracting Corp., 28 F.3d 1254, 1257-58 (D.C. Cir.
1994) (collecting cases).
44. 482 U.S. 1, 12 (1987) (emphasis omitted).
45. 490 U.S. 107, 119-21 (1989).
46. See Fort Halifax, 482 U.S. at 12; Morash, 490 U.S. at 119-21.
47. 29 U.S.C. 1144(b)(2)(A) (2000).
48. See UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 374 (1999); see also Cellilli
v. Cellilli, 939 F. Supp. 72, 76 (D. Mass. 1996). According to that court, the question of
whether a state law regulates the business of insurance is a function of whether the law (1)
spreads risk, (2) integrally affects the relationship between the insurer and the insured, and
(3) is limited to the risk spreading parties. Id.
49. See, e.g., Cellilli, 939 F. Supp. at 77 (Section 5A [of MASS. GEN. LAWS ch. 176G]
directly controls the terms of insurance contracts. . . . It does not merely have an impact on
the insurance industry; it is aimed at it. (quoting FMC Corp. v. Holliday, 498 U.S. 52, 61
(1990))); Sherman, supra note 36, at 400.
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the insured.50 Further, since very few benefits under an employee benefit
plan are mandatory under ERISA,51 state regulation of insurance that
impacts the substance of such a plan is not preempted.52 As such, the
employee benefit plans purchased by employers as insurance contracts
are saved from ERISA preemption under the savings clause.53
50. 538 U.S. 329, 342 (2003) (clarifying what constitutes a state regulation of
insurance). Risk pooling refers to the transferring or spreading of claim risks to the
policyholder under insurance contracts (mitigating risks under an insurance plan among
many policyholders) and is the hallmark of an insurance contract. See id. at 338-39.
51. There are very few substantive benefit mandates contained in ERISA; exceptions
include required coverage under group health insurance plans for hospital stays after child
birth and for reconstructive surgery following a mastectomy. See 29 U.S.C. 1185 (2000);
29 U.S.C. 1185b (2000).
52. See, e.g., Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 736 (1985).
53. See Cellilli, 939 F. Supp. at 76-77 (explaining that an insurance plan that pools risks
faced by plan participants and is subject to state insurance law is not preempted under
ERISAs savings clause).
54. 29 U.S.C. 1144(b)(2)(B) (2000).
55. See Metro. Life, 471 U.S. at 740-41.
56. Id. at 747.
57. Id.
58. See Harvey v. Machigonne Benefits Admrs, 122 F. Supp. 2d 179, 185
(D. Me. 2000).
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insofar as they may now or hereafter relate to any employee benefit plan.59
Those self-funded plans that are not saved are subject to the relate[s] to
test contained in the preemption clause.60 The judicial interpretation of the
preemption clause will be examined in detail in Part IV,61 but a review of
its scope is useful as a preliminary matter because any preemption analysis
draws upon the congressional intent underlying the relevant federal law.62
Congress created ERISA to implement a uniform and consistent
application of legal standards to the administration of employee benefits
nationwide.63 This goal is facilitated through the preemption clause because
it is this provision that mandates the primacy of ERISA standards in the
employee benefit context.64 The Supreme Court interpreted Congresss
inclusion of the preemption clause to mean that Congress intended to
compel the use of federal standards, regardless of whether the relevant
language is explicitly stated or implicitly contained in the legislations
structure and purpose.65 In fact, the Court has found the preemption clause
to be broad in scope and designed to supersede not only laws that directly
conflict with ERISAs substantive provisions, but any state law related to
an employee benefit plan.66
Congressional records surrounding the enactment of ERISA support
this judicial interpretation of the scope of ERISAs preemption clause.67
Both the House and Senate versions of ERISA provided for preemption of
state laws.68 The intent was for the Act to supersede state laws that covered
the same subject matters,69 except for those laws and benefit plans
explicitly exempted.70 The underlying purpose was to eliminate the threat
71. S. SUBCOMM. ON LABOR OF THE COMM. ON LABOR AND PUBLIC WELFARE, 94TH
CONG., supra note 26, at 4665, 4670 (Conference Report on H.R. 2, Employee Retirement
Income Security Act of 1974 (statement of Rep. Dent)).
72. S. SUBCOMM. ON LABOR OF THE COMM. ON LABOR AND PUBLIC WELFARE, 94TH
CONG., supra note 26, at 4771 (Employee Retirement Income Security Act of 1974
Conference Report).
73. S. SUBCOMM. ON LABOR OF THE COMM. ON LABOR AND PUBLIC WELFARE, 94TH
CONG., supra note 26, at 4670 (Conference Report on H.R. 2, Employee Retirement Income
Security Act of 1974 (statement of Rep. Dent)).
74. S. SUBCOMM. ON LABOR OF THE COMM. ON LABOR AND PUBLIC WELFARE, 94TH
CONG., supra note 26, at 4771 (Employee Retirement Income Security Act of 1974
Conference Report).
75. See supra Part I.
76. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56 (1987).
77. 29 U.S.C. 1144(d) (2000).
78. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91 (1983).
79. Id. at 100-03; accord Sherman, supra note 36, at 406-07.
80. Pilot Life Ins., 481 U.S. at 56.
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A. Federal Protections
Federal anti-discrimination law in the employment context is codified
in four statutes: Title VII of the Civil Rights Act of 1964;88 the Age
Discrimination in Employment Act;89 the Americans with Disabilities
Act;90 and the Pregnancy Discrimination Act.91 Title VII prohibits
discrimination on the basis of race, color, religion, sex, or national origin
81. See N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,
514 U.S. 645, 654 (1995).
82. Id.
83. Westinghouse Elec. Supply Co. v. MCAD, 9 Mass. L. Rptr. 661, 663 (Mass. Super.
Ct. 1999).
84. See Travelers, 514 U.S. at 655.
85. See 29 U.S.C. 1144(a) (2000); infra Part V.
86. See infra Part II.B.
87. See infra Part II.A.
88. Civil Rights Act, 42 U.S.C. 2000e-2 (2000).
89. Age Discrimination in Employment Act, 29 U.S.C. 623 (2000).
90. Americans with Disabilities Act, 42 U.S.C. 12132 (2000).
91. Pregnancy Discrimination Act, 42 U.S.C. 2000e(k) (2000).
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district courts determination that liability arose for the defendant when it unlawfully
discriminated against [the plaintiff] on the basis of sex by consciously giving credence and
effect to partners comments about her that resulted from sex stereotyping).
104. Kirshenbaum, supra note 100, at 155.
105. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (It is
clear, however, that Title VII does not prohibit discrimination based on sexual
orientation.); Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000) (The law is well-settled
in this circuit and in all others to have reached the question . . . Title VII does not prohibit
harassment or discrimination because of sexual orientation.); Spearman v. Ford Motor Co.,
231 F.3d 1080, 1084 (7th Cir. 2000) ([H]arassment based solely upon a persons sexual
preference or orientation (and not on ones sex) is not an unlawful employment practice
under Title VII.); Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704
(7th Cir. 2000) ([H]arassment based solely upon a persons sexual preference or orientation
(and not on ones sex) is not an unlawful employment practice under Title VII.); Higgins v.
New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) ([W]e regard it as
settled law that, as drafted and authoritatively construed, Title VII does not proscribe
harassment simply because of sexual orientation.); Williamson v. A.G. Edwards & Sons,
Inc., 876 F.2d 69, 70 (8th Cir. 1989) (Title VII does not prohibit discrimination against
homosexuals.); see also Kirshenbaum, supra note 100, at 155.
106. Defense of Marriage Act, 1 U.S.C. 7 (2000) (defining marriage as only a legal
union between one man and one woman as husband and wife, and the word spouse refers
only to a person of the opposite sex who is a husband or a wife.).
107. Id.; McClendon, supra note 2, at 99.
108. 28 U.S.C. 1738C (2000); Mark Strasser, DOMA and the Two Faces of Federalism,
32 CREIGHTON L. REV. 457, 457-58 (1998).
109. McClendon, supra note 2, at 99.
110. See U.S. CONST. art. IV, 1 (codified as Full Faith and Credit, 28 U.S.C. 1738
(2000)); Strasser, supra note 108, at 457 (characterizing DOMA as an exception to the
Constitutional full faith and credit requirement).
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111. See Singer v. Hara, 522 P.2d 1187, 1191 (Wash. Ct. App. 1974); Sherri L.
Toussaint, Defense of Marriage Act: Isnt It Ironic . . . Dont You Think? A Little Too
Ironic?, 76 NEB. L. REV. 924, 941 (1997).
112. Civil Rights Act, 42 U.S.C. 2000e-2 (2000); see supra Part II.A.
113. See McClendon, supra note 2, at 99-100.
114. MASS. GEN. LAWS ch. 151B (2004).
115. Id. 4(1) (emphasis added).
116. Id. 1(5).
117. Civil Rights Act, 42 U.S.C. 2000e-2 (2000).
118. Ch. 151B, 4(3)-(11).
119. See generally MCAD, For Attorneys, http://www.mass.gov/mcad/forAttorneys.html
(last visited Oct. 4, 2007) (describing laws enforced by the MCAD).
120. MASS. GEN. LAWS ch. 272, 92A, 98, 98A (2006).
121. Ch. 151B, 3A.
122. See MASS. GEN. LAWS ch. 149, 105D (2006).
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123. Id. 105D (stating, [f]or the purposes of this section, an employer shall be
defined as in subsection 5 of section one of chapter [151B]).
124. See Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003).
125. See id.
126. Id.
127. Id.
128. Id. at 948-49.
129. See id. at 950.
130. See infra notes 131-32 and accompanying text.
131. See, e.g., Milford v. Worcester, 7 Mass. 48, 52 (1810) (defining marriage as an
engagement, by which a single man and a single woman, of sufficient discretion, take each
other for husband and wife). The definition of marriage was viewed as a derivative of
English and international common law. Commonwealth v. Knowlton, 2 Mass. 530, 535
(1807); Commonwealth v. Lane, 113 Mass. 458, 462-63 (1873) ([W]hen the statutes are
silent, questions of the validity of marriages are to be determined by the jus gentium, the
common law of nations . . . .).
132. Goodridge, 798 N.E.2d at 969 ([B]arring an individual from . . . civil marriage
solely because that person would marry a person of the same sex violates the Massachusetts
Constitution.).
133. Id.
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134. See MASS. GEN. LAWS ch. 151B, 4(1) (2004); see also infra Part III.
135. Ch. 151B, 4(1) (2004).
136. See supra notes 124-29 and accompanying text.
137. See supra Part II.B.
138. See infra Part III.A.
139. See infra Part III.B.
140. See infra Part III.C.
141. Stonehill College v. MCAD, 808 N.E.2d 205, 217 (Mass. 2004).
142. MASS. GEN. LAWS ch. 151B, 4(1) (2004).
143. Rieves v. G & J Maint. Co., 24 MDLR 136, 138 (Mass. Commn Against
Discrimination May 7, 2002).
144. Id.
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145. Id.
146. 24 MDLR 381, 381-83 (Mass. Commn Against Discrimination Oct. 21, 2002).
147. Id. at 383.
148. McGrath v. United Steelworkers of America, 26 MDLR 178, 202-03 (Mass.
Commn Against Discrimination July 28, 2004).
149. Id. at 197-98, 202.
150. Id. at 192-93. The NLRA has full jurisdiction over matters of national labor policy.
See National Labor Relations Act, 29 U.S.C. 151 (2000). A state must yield its jurisdiction
where its actions threaten to interfere with NLRA jurisdiction. San Diego Bldg. Trades
Council v. Garmon, 359 U.S. 236, 243 (1959).
151. McGrath, 26 MDLR at 193 (quoting Garmon, 359 U.S. at 244).
152. Compare supra Part I.A. (detailing ERISA preemption), with Angel Gomez, III,
Preemption and Preclusion of Employee Common Law Rights by Federal and State
Statutes, 11 INDUS. REL. L.J. 45, 48 (1989) (explaining that NLRA preemption occurs when
state jurisdiction interferes with the jurisdiction of the National Labor Relations Board)
(citing Garmon, 359 U.S. 236). The MCAD noted, discrimination in employment is
generally considered to be a peripheral concern of the [NLRA]. McGrath, 26 MDLR at
193 (quoting Garmon, 359 U.S. at 243).
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153. See McGrath, 26 MDLR at 193. The Commission noted that protection from
discrimination in employment on the basis of sexual orientation is a deeply rooted belief in
Massachusetts and is a significant state interest. Id.
154. DAgostino v. Salvation Army, 25 MDLR 176, 178 (Mass. Commn Against
Discrimination May 23, 2003).
155. Id. The employee was falsely accused of sexual misconduct with a minor; he was
exonerated of those charges but was terminated anyway, which the Commission determined
was unlawful. Id. at 177-78.
156. Morgan v. Boston Market, 24 MDLR 45, 45-47 (Mass. Commn Against
Discrimination March 4, 2002).
157. Id.
158. Id. at 48. Total damages with interest exceeded $100,000. Id.
159. A place of public accommodation is any place which is open to and accepts or
solicits the patronage of the general public. MASS. GEN. LAWS ch. 272, 92A (2004).
160. Ch. 272, 98.
161. See, e.g., Cashman v. Zekes, 24 MDLR 323 (Mass. Commn Against
Discrimination Oct. 21, 2002); Barbot v. Yellow Cab, 23 MDLR 317 (Mass. Commn
Against Discrimination Nov. 27, 2001).
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172. Curry & Hayes v. Allessio, 21 MDLR 247, 249 (Mass. Commn Against
Discrimination Dec. 20, 1999).
173. Id. at 249-50.
174. See, e.g., McGrath v. United Steelworkers of America, 26 MDLR 178, 202 (Mass.
Commn Against Discrimination July 28, 2004).
175. See Millet v. Lutco, Inc., 23 MDLR 231, 232 (Mass. Commn Against
Discrimination Oct. 10, 2001).
176. Id. The Commission followed the framework of cases such as Price Waterhouse v.
Hopkins, finding that sex discrimination encompasses more than the anatomical notion of
sex because it incorporates elements of gender and societal expectation. Id. (citing Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989)).
177. Id. at 233. Gender Identity Disorder in Adolescents or Adults is defined as a
strong and persistent cross-gender identification that is manifested by symptoms such as a
stated desire to be the other sex, frequent passing as the other sex, desire to live or be treated
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as the other sex, or the conviction that he or she has the typical feelings and reactions of the
other sex. TASK FORCE ON DSM-IV, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 537-38 (American Psychiatric Assn 4th ed. 1994) (appearing as diagnostic code
302.85).
178. Millet, 23 MDLR at 233.
179. Id.
180. 15 Mass. L. Rptr. 412, 416 (Mass. Super. Ct. 2002).
181. Id. at 415.
182. Id. at 412-13.
183. Id. at 416. The court cited, for example, a case where a bank teller refused to give a
loan application to a transgendered applicant because the teller thought the applicant was
gay, thereby confusing cross-dressing with sexual orientation. Id. (citing Rosa v. Park W.
Bank & Trust, 214 F.3d 213, 214 (1st Cir. 2000)).
184. Neil Dishman, The Expanding Rights of Transsexuals in the Workplace, 21 LAB.
LAW. 121, 138 (2005) ([T]here are no reported cases of transsexual plaintiffs successfully
using this theory.).
185. See Lie, 15 Mass. L. Rptr. at 416.
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186. See Jette v. Honey Farms Mini Market, 23 MDLR 229, 230 (Mass. Commn Against
Discrimination Oct. 10, 2001).
187. Id. at 229-30.
188. The Jette court refers to Gender Dysphoria and transsexualism, which are
simply alternate terms for Gender Identity Disorder as understood in the DSM-IV.
Enriquez v. W. Jersey Health Sys., 777 A.2d 365, 368 (N.J. Super. Ct. App. Div. 2001);
Jette, 23 MDLR at 229-30; see supra note 177 (defining Gender Identity Disorder). In this
section, the term Gender Identity Disorder is used instead of Gender Dysphoria for
clarity.
189. Jette, 23 MDLR at 229-30; see MASS. GEN. LAWS ch. 151B, 1(17)(a) (2004).
190. Jette, 23 MDLR at 230.
191. 151B, 9 provides, [t]his chapter shall be construed liberally for the
accomplishment of its purposes. MASS. GEN. LAWS ch. 151B, 9 (2004).
192. See, e.g., McGrath v. United Steelworkers of America, 26 MDLR 178, 193 (Mass.
Commn Against Discrimination 2004).
193. See MASS. GEN. LAWS ch. 30A, 14 (2004) (discussing deferential judicial review);
see also St. Elizabeths Hosp. v. Labor Relations Commn, 321 N.E.2d 837, 838 (Mass.
1975) (describing the deference given to an MCAD decision).
194. St. Elizabeths Hosp., 321 N.E.2d at 838.
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195. Stonehill College v. MCAD, 808 N.E.2d 205, 225 (Mass. 2004). [The
Massachusetts Supreme Judicial Court] will affirm a decision and order of the MCAD
unless the findings and conclusions are unsupported by substantial evidence or based on an
error of law. City of Salem v. MCAD, 693 N.E.2d 1026, 1037 (Mass. App. Ct. 1998).
196. School Comm. of Brockton v. MCAD, 666 N.E.2d 468, 474 (Mass. 1996).
197. See Intercultural Ctr. for Research and Educ., Inc. v. MCAD, No. 05-P-886, 2006
WL 1098151, at *1 (Mass. App. Ct. April 26, 2006) (finding that the MCAD had not erred
as a matter of law because its decision was supported by substantial evidence in the
administrative record).
198. Id.
199. 830 N.E.2d 1090, 1099-103 (Mass. App. Ct. 2005).
200. Trs. of Health and Hosps. of the City of Boston, Inc. v. MCAD, 839 N.E.2d 861,
865 (Mass. App. Ct. 2006) ([The Court] grant[s] deference to the interpretations
administrative agencies make of the statutory scheme that they administer. (citing Somerset
Imps., Ltd. v. Alcoholic Beverages Control Commn, 551 N.E.2d 545, 548 (Mass. App. Ct.
1990))).
201. Id.
202. See id. at 867.
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demonstrated willingness and ability to protect its residents under state law
where such individuals are otherwise without a remedy under federal
law.203 In addition, the Commission has boldly carved new protections out
of existing language where it faces claims from a population at risk.204
Through these efforts, Massachusetts courts have supported the MCAD
where the Commissions decisions are sufficiently supported by facts and
based on reasonable inferences.205 As such, the MCAD should endeavor to
apply state anti-discrimination law in the context of employee benefits,
where claims before the Commission can pass the traditional ERISA
preemption tests.206
212. See supra Part I.D (discussing ERISAs preemption clause and its impact on state
law).
213. 29 U.S.C. 1144(a) (2000) (emphasis added).
214. Shaw, 463 U.S. at 91, 96-100, 106.
215. See id. at 88-89.
216. Id. at 92-93. At the times material to the claim in this case, the Federal Pregnancy
Discrimination Act had not taken effect. Id. at 93 n.9.
217. Id. at 96-97.
218. Id. at 97.
219. Id.
220. Shaw, 463 U.S. at 96-97 (emphasis added) (citing BLACKS LAW DICTIONARY 1158
(5th ed. 1979)).
221. Id. at 100 (We hold that the Human Rights Law and the Disability Benefits Law
relate to any employee benefit plan within the meaning of . . . [ERISA].).
222. Shaw, 463 U.S. at 96-97.
223. Id. at 105 (Congress might well have believed, had it considered the precise issue
NOLAN. FINAL 1/7/2008 10:24:23 PM
before [the Court], that ERISA plans should be subject only to the nondiscrimination
provisions of Title VII, and not also to state laws prohibiting other forms of
discrimination.).
224. Id.
225. Id. at 100 n.21.
226. Id. (citing Am. Tel. & Tel. Co. v. Merry, 592 F.2d 118, 121 (2d Cir. 1979)).
227. See id. at 96-97.
228. See Shaw, 463 U.S. at 96-97.
229. Id.
230. Cal. Div. of Labor Stds. Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S.
316, 324 (1997).
231. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139 (1990). In this case, the Court
found that a Texas statutory cause of action made specific reference to, and was premised
on, the existence of a pension plan. Id. at 140.
232. Air Trans. Assn of Am. v. City and County of San Francisco, 992 F. Supp. 1149,
1168 (N.D.Cal. 1998) (alteration in original) (quoting Cal. Div. of Labor Stds. Enforcement
v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 325 (1997)).
NOLAN. FINAL 1/7/2008 10:24:23 PM
233. Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 144 (1st Cir.
2000).
234. Id. at 138-39, 141.
235. Id. at 141-45 (discussing the reference test).
236. Id. at 142. In two recent cases, First Circuit courts have reviewed state laws and
determined that ERISA preemption does not apply. See N. Kare Facilities/Kingdom Kare,
L.L.C. v. Benefirst, L.L.C., 344 F. Supp. 2d 283, 286-89 (D. Mass. 2004) (examining
Massachusetts state laws regarding unfair trade practice); Pharm. Care Mgmt. Assn v.
Rowe, 429 F.3d 294, 301-05 (1st Cir. 2005) (examining Maine state laws regarding unfair
prescription drug trade practices).
237. See infra Part V.
238. No. 06-11436-JLT, 2007 WL 1810218 (D. Mass. June 25, 2007).
239. Id. at *1.
240. Id.
241. Id.
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ERISA-governed plan.251
relationship to ERISA plans.262 The case involved a New York law that
imposed a surcharge and higher rates on patients covered by a commercial
insurerit did not impose the same burdens on patients of Blue Cross/Blue
Shield.263 The commercial insurers sued, claiming that the state law was
preempted by ERISAs administrative scheme and, as such, was
impermissible.264 The Court stated that cost uniformity is not an object of
preemption and that state laws having an indirect economic effect on the
cost of insurance do not fall within the scope of ERISA preemption, as
envisioned by Congress.265 Thus, state laws that marginally increase costs
to employee benefit plans do not establish a connection between the plan
and the law sufficient to trigger ERISA preemption.266
In both Dillingham Construction and Travelers, the Court examined
the scope of the state law and determined that it was not within those laws
Congress intended to preempt.267 Further, both analyses examined the
impact of the state law on the respective ERISA-governed benefit plan and
determined that the connection was too remote to trigger preemption.268
Both Courts reiterated that ERISA was designed to govern the management
of funds through reporting, disclosure, and fiduciary duty requirements.269
It follows that state laws that do not impact or compromise the operation of
these primary objectives are presumed to have a peripheral relationship to
ERISA-governed plans.
At the district court level, the connection test has proved more
difficult to apply. In Partners Healthcare Systems, Inc. v. Sullivan,270 the
U.S. District Court for the District of Massachusetts determined that
chapter 151B has a connection with ERISA-governed employee benefit
plans because it would, in effect, specify who the plan must name as
beneficiaries of the plan . . . benefits.271 In so doing, chapter 151B would
govern the payment of benefits and, as such, it would evince a connection
with an ERISA plan.272 It is with this reasoning that the District Court
misses the mark and employs an expansive construction of the connection
test that is inconsistent with the narrowing trend among federal appellate
courts.273 As Gay and Lesbian Advocates and Defenders (GLAD) argues
in its amicus curiae brief, the Supreme Court in Shaw found that state
statutes which directly mandated specific benefits or imposed a calculation
of benefits on plan administrators were preempted.274 But chapter 151B is a
law of general applicabilityit does not impose any obligation on ERISA-
governed plans directly;275 it does so only in effect.276 This distinction is
critical and provides ripe ground for appeal in federal court, where the
connection test should be interpreted narrowly such that chapter 151B is
not preempted. Such a holding would be consistent with the federal
appellate interpretation of the connection test described above.
Massachusetts state courts have followed the federal model in
determining whether a state law claim has a connection with an employee
benefit plan. In Slavin v. Xenon Corp., the Massachusetts Superior Court
found that a plaintiffs claim under a state common law breach of contract
did not fall within ERISAs preemptive scope because it affected the
employee benefit plan in too tenuous, remote, or peripheral a manner.277
The court held similarly in Westinghouse Electric Supply Corp. v. MCAD,
finding that the plaintiffs claim had a purely incidental effect upon the
employee benefit plan at issue.278 Indeed, the court specifically noted that
[a] state discrimination claim does not automatically relate to
ERISA.279
The Massachusetts jurisprudence under the connection test is not as
developed as its federal counterpart.280 However, the courts that have
considered the issue primarily defer to the federal language as guidance
A. The MCAD Should Advance the Claim that Chapter 151B Protects
Married Persons from Discrimination Based on Their Sexual
Orientation.
The claim aforementioned example is ripe for MCAD adjudication.
Because the MCAD is the first body through which a claim under state
anti-discrimination law must proceed, the claimant must bring his suit to
the MCAD.287 A Massachusetts court will not hear such claims before they
281. See, e.g., Westinghouse Elec., 9 Mass. L. Rptr. at 664; Slavin, 3 Mass. L. Rptr. at
228.
282. See supra note 8 and accompanying text.
283. See MASS. GEN. LAWS ch. 151B, 4(1) (2004).
284. See supra notes 22-23 and accompanying text.
285. See supra notes 19-21 and accompanying text.
286. Ch. 151B, 4(1).
287. Smith v. Bell Atl., 829 N.E.2d 228, 245 (Mass. App. Ct. 2005) ([Chapter] 151B . . .
require[s] a claimant to file a charge with the MCAD before filing a lawsuit.).
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288. See Stonehill Coll. v. MCAD, 808 N.E.2d 205, 217 (Mass. 2004).
289. MASS. GEN. LAWS ch. 151B, 3 (2004); see supra notes 19-21 and accompanying
text.
290. See supra Part III.
291. See, e.g., Rieves v. G. & J. Maint. Co., 24 MDLR 136, 137 (Mass. Commn Against
Discrimination 2002).
292. See, e.g., DAgostino v. Salvation Army, 25 MDLR 176, 178 (Mass. Commn
Against Discrimination 2003).
293. See, e.g., Morgan v. Boston Market, 24 MDLR 45, 45-47 (Mass. Commn Against
Discrimination 2002).
294. See supra Part III.B.
295. See MASS. GEN. LAWS ch. 151B, 9 (2004) ([t]his chapter shall be construed
liberally for the accomplishment of its purposes); see, e.g., McGrath v. United Steel
Workers, 26 MDLR 178, 193 (Mass. Commn Against Discrimination 2004).
296. See supra notes 22-23 and accompanying text.
297. See supra note 22.
298. See supra Part III.
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analyses of the discrete issues before it.299 It has ample support for a
conclusion that chapter 151B protects all married spouses from
discrimination in the administration of employee benefit plans300 and
should strenuously advocate for this result.
applied to same-sex spouses legally married under state law, stare decisis
compels courts to look to state law to interpret benefits bestowed upon a
spouse in an ERISA-governed plan.321 Unless the court equates an
employee benefit plan to an Act of Congress and applies the federal
definition of spouse broadly,322 DOMA will not mandate the exclusion of
same-sex partners, legally defined as spouses under state law, as
beneficiaries under ERISA-governed plans.323
Accordingly, the MCAD should not ascribe significant import to
DOMA when examining claimants situated similarly to those in the instant
example. Assuming the benefit plan at issue provides for beneficiary status
using the terms spouse or marriage, the MCAD should look to state
law for a definition of those terms when considering whether a same-sex
spouse, legally married to a covered employee under state law, may qualify
for benefits as a beneficiary under the plan.324
1993) (relying on state criteria to determine whether the claimant was participants spouse
for purposes of receiving death benefits under an ERISA-governed plan); Iron Workers
Mid-South Pension Fund v. Stoll, 771 F. Supp. 781, 783-84 (E.D. La. 1991) (relying on
state law to determine if claimant was a decedents common-law wife and entitled to death
benefits under an ERISA-governed pension plan).
321. See supra note 320 and accompanying text.
322. See Ripke, supra note 303, at 277-78.
323. Glaser, supra note 307, at 5.
324. See supra note 320 and accompanying text. In Massachusetts, same-sex individuals
may be married spouses under state law. See Goodridge v. Dept. of Pub. Health, 798
N.E.2d 941, 969 (Mass. 2003).
325. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987).
326. Id. at 64 (citing Avco Corp. v. Machinists, 390 U.S. 557 (1968)).
327. See Felix v. Lucent Technologies, Inc., 387 F.3d 1146, 1153 (10th Cir. 2004)
(distinguishing complete preemption from conflict preemption).
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federal court through the civil enforcement provision, which provides that
an employee benefit plan participant or beneficiary may bring a civil action
to recover benefits due, enforce rights, or clarify a right to benefits under
the terms of the plan.328 A claimant who seeks benefits due under the terms
of an employee benefit plan can bring an action under ERISA and, as such,
their claims may be removed to federal court under the doctrine of
complete preemption.329 The example claimants may proceed before the
MCAD and their claims need not face removal because they do not merely
seek benefits under terms of the employee benefit plan; rather, the example
claimants seek the fair administration of the employee benefit plan and
inclusion in the plan design.330 They do not necessarily seek any particular
benefit due them under the existing plan.
Indeed, plaintiffs must have standing to sue under ERISAs civil
enforcement provision before their claims are subject to removal.331 The
same-sex married spouse of an employee may seek fair enforcement of an
employee benefit plan under Massachusetts state law, but that individual
would not have standing under ERISAs civil enforcement provision
because they are not yet a beneficiary under the plan. Accordingly, it is fair
to characterize the example claimants claims as falling outside the doctrine
of complete preemption.
346. See Westinghouse Elec. Supply Co. v. MCAD, 9 Mass. L. Rptr. 661, 664 (Mass.
Super. Ct. 1999).
347. Id.
348. Id.
349. Compare Westinghouse Elec., 9 Mass. L. Rptr. at 664-65 (describing that the nature
of the state law claim is a primary consideration in determining whether the state law relates
to an ERISA plan), with Carpenters Local, 215 F.3d at 144 (focusing on a patent reference
in state law to an ERISA-governed plan to determine if the law contains a reference to the
plan).
350. Compare supra Part IV.B (explaining federal jurisprudence of the reference test),
with supra notes 245-51 and accompanying text (explaining Massachusetts jurisprudence of
the reference test).
351. See, e.g., Westinghouse Elec., 9 Mass. L. Rptr. at 661 (stating that plaintiffs claim
of discrimination under 151B does not directly affect the administration of the employee
benefit plan and exists independently of the plan (citing Pace v. Signal Tech. Corp., 628
N.E.2d 20, 23 (Mass. 1994))).
352. See id.
353. See supra Part IV.C; infra notes 354-77 and accompanying text.
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354. Cal. Div. of Labor Stds. Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S.
316, 325 (1997).
355. Id.
356. These three considerations are essential to the Courts analysis in Dillingham
Construction. See id.
357. Id. at 326-27 (quoting Mass. v. Morash, 490 U.S. 107, 115 (1989)).
358. See id. at 325; see also S. SUBCOMM. ON LABOR OF THE COMM. ON LABOR AND
PUBLIC WELFARE, 94TH CONG., supra note 26, at 5-6.
359. See Dillingham Constr., 519 U.S. at 326-27 (quoting Massachusetts v. Morash, 490
U.S. 107, 115 (1989)).
360. Consistent with Shaw, 151B is an example of a state law with too tenuous, remote,
or peripheral a connection to the administration of an employee benefit plan to justify
preemption. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n.21 (1983).
361. An indirect (marginal) impact on the costs of employee benefit plans is not
sufficient to bring the state law within ERISAs preemptive scope. N. Y. State Conference
of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 662 (1995).
362. See supra notes 21-23 and accompanying text; supra notes 284-88.
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administrator is not required to act for this employee and their spouse any
differently than they would for another married couple, but simply to
recognize the spouse and designate them as a beneficiary. Recognition of
same-sex spouses may slightly increase the costs of insurance on the
employer;363 but this economic effect is marginal, just as in Travelers.364
However, the Supreme Court described the consideration of a laws
impact on an employee benefit plan as a practical considerationif the
enforcement of the state law would require a benefit administrator to
determine plan eligibility differently in that state than in others, it may
contradict ERISAs goals.365 This test does not present a barrier to the
present example claimant because the example benefit plan administrator
only deals with plans for Massachusetts employers and, as such, is dealing
largely with Massachusetts employees.
Although, even if the vision plan administrator works for employers
in many states, it is not being asked to change who receives benefits as a
spouse when it applies the Massachusetts definition of marriage; it is
merely required to define married spouse under state law and offer benefits
consistent with that definition.366 This is no different from the way in which
plan administrators currently decide who is or is not married for purposes
of plan benefits.367
The situation may be more onerous for a plan administrator operating
in a state which recognizes domestic partnerships, civil unions, or legal
statuses other than marriage.368 In that case, the administrator would be
363. It is estimated that the number of homosexuals in the American workforce may be as
high as 10%, but that only 1.3-2.4% of the workforce self-identifies as such. William B.
Rubenstein, Do Gay Rights Laws Matter?: An Empirical Assessment, 75 S. CAL. L. REV. 65,
83-85 (2001). It follows that the number of openly homosexual workers who are married
under state law and who seek employee benefits for their spouse will fall significantly below
this 1.3-2.4% figure; as such, this population poses a negligible risk of increased cost to
employers. See id.
364. 514 U.S. at 662.
365. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 10 (1987).
366. See supra Part V.A.
367. A plan administrator defers to plan documents for the definition of spouse. See 29
U.S.C. 1002(8) (2000). If the plan documents are required to include all legally married
spouses in this definition, the plan administrator need do nothing more than require a copy
of the marriage certificate to confirm beneficiary status and confer benefits. See supra Part
V.B (discussing unresolved issue of whether DOMA or state law will determine definition
of marriage for purposes of ERISA).
368. For example, in Vermont, same-sex couples may establish a Civil Union, but not a
Marriage. See VT. STAT. ANN. tit. 15, 1201-1207 (Lexis Nexis 2002) (codifying Baker v.
State, 744 A.2d 864 (Vt. 1999)). A plan administrator who extended benefits to spouses of
same-sex employees in relationships with this status would require different information to
qualify these spouses than would be required of an opposite-sex couple married under state
NOLAN. FINAL 1/7/2008 10:24:23 PM
law. This situation does not occur in Massachusetts, where all married couples are given the
same license by the state. See MASS. GEN. LAWS ch. 207, 45 (2004).
369. This eventuality is closer to the inefficiencies in plan administration described in
Fort Halifax because it would require a plan administrator to develop separate processes for
determining a lawful spouse to comply with state regulations. See Fort Halifax, 482 U.S. at
10.
370. See supra Part V.
371. See supra note 367 and accompanying text.
372. See Fort Halifax, 482 U.S. at 11. The benefit of preemption is that it ensures that
the administrative practices of a benefit plan will be governed by only a single set of
regulations. Id.
373. See id.; supra note 32 and accompanying text.
374. Commonwealth v. Stowell, 449 N.E.2d 357, 360 (Mass. 1983) (citing Zablocki v.
Redhail, 434 U.S. 374, 396 (1978) (Powell, J., concurring)).
375. See supra notes 316-19 and accompanying text.
376. See supra note 308 and accompanying text.
377. See supra Part V.B.
378. Partners Healthcare Syss, Inc. v. Sullivan, No. 06-11436-JLT, 2007 WL 1810218,
at *3 (D. Mass. June 25, 2007); see also supra notes 238-44 and accompanying text.
379. Partners, 2007 WL 1810218, at *4.
380. See supra notes 270-76 and accompanying text.
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VI. CONCLUSION
The judicial reasoning required for the example claimants to succeed
is eminently feasible. A narrow reading of DOMA, consistent with judicial
deference to state constructions of marriage law, will save the employee
benefit plan from being subject to the federal definition of marriage.381 A
claim of discrimination under Massachusetts anti-discrimination law does
not relate to the ERISA-governed plan at issue and should therefore survive
preemption. The claim contains no patent reference to the plan, and it
functions independently of the plan because it does not depend on the
existence of the plan to sustain a cause of action.382 The claim has no
connection to the plan because it has merely an incidental economic impact
on the plan, requires no more or different plan administration than is
presently employed to determine beneficiary status, and does not
undermine ERISAs goals.383
A court reviewing a MCAD decision requiring employers to extend
benefits to all legally married spouses in Massachusetts should employ this
reasoning because such a conclusion is sustainable under state and federal
jurisprudence. Further, this result is perfectly consistent with the intended
scope of ERISAs preemption provision384 and the legislations overall
goals.385
However, in order to posit this reasoning to a court, the MCAD must
be allowed to investigate and advance such a claim.386 The Commission
must first appeal the decision that prevents them from investigating claims
of discrimination in the administration of ERISA-governed employee
benefit plans under state anti-discrimination law.387 If allowed to proceed
with its investigation, the Commission should recognize that the denial of
benefits to same-sex spouses legally married under state law, where their
opposite-sex counterparts are offered benefits, is tantamount to
discrimination based on sexual orientation and is therefore illegal. This