September 28, 2020

Volume X, Number 272

September 25, 2020

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LGBTQ Title VII Ruling May Impact Your Employee Benefit Plan

On Monday, June 15, 2020, the US Supreme Court held in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 protects transgender, gay and lesbian employees (and prospective employees) from workplace discrimination based on sex. Bostock was decided on the heels of the Final Section 1557 regulations (see our On the Subject here) which, in part, rescind certain protections afforded to lesbian, gay, bisexual, transgender and queer (LGBTQ) individuals.


Bostock definitively states that Title VII’s prohibition against employment discrimination “because of … sex” bars not only discrimination based on sex or gender but also discrimination because of sexual orientation or gender identity. A similar position taken by some states applies to fully insured health plans to prevent discrimination on the basis of sexual orientation or gender identity.

Because Title VII is typically thought of as governing workplace issues like hiring, firing, promotions and harassment, the benefits implications of this landmark decision may be overlooked. Title VII bans discrimination on the basis of race, color, religion, sex and national origin—by employers with 15 or more employees—in the terms, conditions and privileges of employment. The conditions and privileges of employment includes compensation, and the Employee Retirement Income Security Act of 1974 (ERISA) explicitly exempts Title VII from its broad preemptive authority.

This means that the protective authority of Title VII for LGBTQ individuals generally extends to employer-sponsored healthcare benefits. The decision does, however, leave unanswered the question of to what extent certain religiously affiliated employers may claim a religious exemption to Title VII’s mandates.

Bostock is not the first time a US Supreme Court decision has effectively amended employer-sponsored healthcare plan requirements. In 1983, the Supreme Court held in Newport News Shipbuilding Co. v. EEOC that Title VII requires equally comprehensive coverage to both male and female employees, mandating that employer-provided health plans may not discriminate on sex-based characteristics (e.g., employer-provided health plans must cover pregnancy, childbirth and related medical conditions).

Because of Bostock, employers who sponsor group-health plans should consider taking the following steps, in addition to a general review of their benefit plans to see if Bostock may have other implications:

  • Review coverage terms for gender-affirmation surgery, gender dysphoria, pharmacy and mental health benefits coverage to determine whether changes may be appropriate.

  • Review eligibility for same-sex spouses and same-sex domestic partners to determine whether any changes may be appropriate.

  • Review employee assistance program (EAP) and related services to ensure adequate coverage for the specific needs of LGBTQ members.

  • Review benefit plan administration and benefits claim forms for potential sex discrimination concerns, including concerns related to sexual orientation discrimination and gender identity discrimination.

  • Review your health plan’s provider network to ensure reasonable access to providers that are experienced with, and supportive of, LGBTQ healthcare.

  • Determine whether disability plan coverage includes temporary disability due to gender-affirmation surgery.

  • Consider expanding family-planning benefits (both within and outside group health plans) to include LGBTQ employees (e.g., adoption assistance, foster care, reproductive technology assistance).

  • For those employers with strongly held religious beliefs, consult with legal counsel to ensure any desired religious exclusions are met.

Employers should also remember that this decision permits more expansive benefit and nondiscrimination policies and practices than what federal or state law requires.

Plan sponsors and administrators should consult with their third-party administrators, insurance providers and legal advisors to confirm Bostock’s implications on their existing plan policies, procedures, participant notices and applicable plan documents.

© 2020 McDermott Will & EmeryNational Law Review, Volume X, Number 174


About this Author

Jacob Mattinson Employee Benefits Attorney

Jacob M. Mattinson focuses his practice on employee benefits and matters related to 401(k), 403(b), pension, executive compensation, health care reform, and cafeteria and welfare plans.

Jacob assists clients in drafting employee benefit plan documents and amendments. He represents clients in matters before the Internal Revenue Service (IRS), US Department of Labor (DOL) and Pension Benefit Guaranty Corporation with respect to plan qualification issues. He also counsels privately and publicly held corporations and tax-exempt entities on a variety of benefits and Employee Retirement...

Emily Rickard, McDermott Will Emery, Employee Benefits Matters Lawyer, ERISA Litigation Attorney

Emily Rickard is an associate in the law firm of McDermott Will & Emery and is based in the Firm’s Washington D.C. office. She focuses her practice on employee benefits matters.

Outside of the ESOP context, Emily’s practice spans a wide range of national and international employee benefits matters. This includes qualified plans, nonqualified plans, executive compensation, health and welfare arrangements, and Employee Retirement Income Security Act of 1974 (ERISA) litigation. She advises employers in connection with fiduciary issues under ERISA, government audits of employer-provided benefit plans, and also with respect to litigation from regulatory enforcement actions. Emily has also been a member of several cross-practice group deal teams relating to mergers and acquisitions of public as well as private companies.

Emily previously served as an ERISA litigation intern within the Plan Benefits Security Division of the Office of the Solicitor at the U.S. Department of Labor in Washington D.C. She studied executive compensation trends while working as a research assistant at Vanderbilt University Law School. She also served as a judicial intern for the Honorable Jane Roth at the U.S. Court of Appeals for the Third Circuit in Philadelphia.

During law school, Emily was active in public interest work. Emily was a program director for the Medical Legal Partnership in Nashville, Tennessee, where she helped provide comprehensive legal aid service for patients at a free medical clinic.

Emily received her J.D. in May 2015 from the Vanderbilt University Law School, where she served as an executive student writing editor for the Vanderbilt Journal of Transnational Law. She earned her B.A. in diplomatic history, magna cum laude, with minors in African Studies and Latin, from the University of Pennsylvania. Emily is a 2014 Gary S. Tell ERISA Litigation Scholar.

Emily is admitted to practice in Illinois. 

202 756 8370
Judith Wethall, McDermott Law Firm, Chicago, Labor and Employment Law Attorney

Judith Wethall focuses her practice on employee benefits, specifically health and welfare programs. She counsels employers, plan administrators, insurers and consultants on a wide range of ERISA compliance issues. Judith's clients include sole proprietors to Fortune 100 companies and cover a variety of industries including health care, technology, manufacturing, insurance and financial.

Judith has extensive experience advising clients on health care law reform; wellness programs; Medicare secondary payor rules; fiduciary compliance; disability...