Friday, May 13, 2016

Tovar v. Essentia Health: Does Title VII cover benefits that discriminate against non-employees based on their sex?

In Tovar v. Essentia Health, No. 0:16-cv-00100-RHK-LIB (D. Minn. May 11, 2016), Federal District Court Judge Richard Kyle dismissed the plaintiff's claim that her employer violated Title VII of the Civil Rights Act of 1964 by denying her son health benefits to cover his gender reassignment surgery. Although the court analyzed the issue presented -- at the employer's urging -- as one involving standing, this is first and foremost a coverage issue. The court's rejection of the plaintiff's claim is consistent with the EEOC's Questions and Answers on the Pregnancy Discrimination Act in which the EEOC states that an employer is not required to cover "the pregnancy-related conditions of [non-spousal] dependents as long as it excludes the pregnancy-related conditions of the dependents of male and female employees equally." 29 C.F.R. § 1604 Appendix, Q&A 21. By analogy, denial of benefits related to gender reassignment surgery for non-spousal dependents is not covered by Title VII as long as the benefits are excluded for male and female employees equally.

The reason that there is no coverage here is that Title VII only covers discrimination against employees based on those employees' sex. This reflects the analysis in the Supreme Court decision in Newport News Dry Dock & Shipbuilding Co. v. EEOC, 462 U.S. 669 (1983), holding that the denial of spousal pregnancy benefits discriminated against male employees, because the practice resulted in a lower level of spousal medical benefits for male employees than for female employees. The Court's conclusion that the challenged practice discriminated against male employees turned on the fact that exclusion of spousal pregnancy benefits denied a benefit solely to male employees since, at that time, only men could be married to women. 462 U.S. at 684 ("[S]ince the sex of the spouse is always the opposite of the sex of the employee, it follows inexorably that discrimination against female spouses in the provision of fringe benefits is also discrimination against male employees."). In the wake of same-sex marriage,  however, the denial of spousal pregnancy benefits would seem no longer to be facially discriminatory.

Even if Title VII does not cover the denial of certain non-spousal benefits, there might be coverage pursuant to the requirements of another federal, state, or local law (like the Affordable Care Act), so in this post, I don't mean to suggest a complete absence of coverage.

Finally, in Tovar, Judge Kyle does not address the underlying issue of whether the denial of benefits for gender reassignment surgery would constitute sex discrimination, so that issue is also lurking out there.


This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.