Benefits, Employment Law

Gender Identity: Does Title VII Cover Dependent’s Insurance Coverage?

The U.S. 8th Circuit Court of Appeals—which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota—recently affirmed a lower court’s dismissal of a nurse’s lawsuit against her employer and its insurer, in which she claimed that the denial of insurance coverage for her son’s gender reassignment treatment amounted to sex discrimination.

Background

“Amber,” a nurse practitioner, was employed by Essentia Health or Innovis Health, LLC (collectively, “Essentia”), from 2010 to 2016. Her benefits as an employee of Essentia included health insurance provided through the Essentia Health Employee Medical Plan by HealthPartners, Inc.

In 2014, Amber’s teenage son became a beneficiary of the plan. Later that year, he was diagnosed with gender dysphoria, a condition that arises when an individual’s gender identity differs from the gender he was assigned at birth. Health professionals decided that various treatments were necessary to treat his condition, including medications and gender reassignment surgery.

Amber sought insurance coverage for her son’s treatment, but because the plan categorically excluded coverage of “services and/or surgery for gender reassignment” at that time, Essentia and HealthPartners declined to pay for it. The coverage dispute caused Amber “worry, anger, disappointment, and sleepless nights,” made it “more difficult for her to focus on her work,” and caused her to suffer “a sharp increase in migraines.”

Amber paid for at least one of her son’s prescribed medications herself, although Essentia later agreed to provide coverage for that medication as a “one-time exception” to its categorical bar on coverage. However, her son was forced to forgo another prescribed medication that the family was unable to pay for, and he was unable to go forward with his gender reassignment surgery.

Amber filed a lawsuit in January 2016 against Essentia and HealthPartners, accusing Essentia of sex discrimination in violation of Title VII of the Civil Rights Act of 1964—among other things. In response to a motion filed by Essentia, the district court dismissed her Title VII claim. Amber appealed to the 8th Circuit.

8th Circuit’s Opinion

The court of appeals began by explaining that someone who seeks relief for the violation of a statute must fall within the class of persons whom Congress has authorized to sue under the statute. If a court determines that Congress didn’t authorize a particular individual to sue under a statute, it may dismiss her suit. The district court had concluded that Amber’s complaint didn’t fall within the protections of Title VII.

The 8th Circuit pointed out that Title VII prohibits an employer from discriminating “against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.”

The district court concluded that because Amber hadn’t accused her employer of discriminating against her on the basis of her own sex, but rather alleged that it discriminated against her on the basis of her son’s sex, her complaint wasn’t proper under Title VII. (Note: Because the district court concluded that Amber wasn’t within the class of persons whom Title VII protects, the 8th Circuit assumed for purposes of her lawsuit that the Act’s prohibition on sex-based discrimination includes protection for transgender individuals.)

The court of appeals identified the narrow question presented by this case: Did Amber’s complaint on her own behalf over her employer’s refusal to cover treatment for her son fall within the protections of Title VII?

In analyzing that question, the court noted Title VII expressly provides that “it shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] . . . employment, because of such individual’s race, color, religion, sex, or national origin.” In other words, Title VII prohibits employers from discriminating against employees on the basis of their protected characteristics. The court found that because Amber didn’t claim that she was discriminated against on the basis of her own sex, the protections of Title VII didn’t extend to her.

The court recognized that its reading of the plain language of Title VII was supported by decades of case law, drawing a distinction between Amber’s situation and the situation presented in Newport News Shipbuilding and Dry Dock Co. v. EEOC.

In that pregnancy discrimination case, an employer’s health insurance plan covered its employees and their spouses but provided different pregnancy-related benefits for female employees and the female spouses of male employees. The U.S. Supreme Court framed the question presented by the case as “whether [the complaining employee’s] plan discriminates against male employees because of their sex” and ultimately concluded that it did because the protection it afforded to married male employees was less comprehensive than the protection it afforded to married female employees.

The court noted that a central and explicit component of the reasoning in Newport News was a questionable assumption that the spouse of a man would always be a woman. Nonetheless, the 8th Circuit noted, the Supreme Court clearly concluded that the male employees themselves were discriminated against on the basis of their own sex because the employer’s health insurance plan provided married male employees a benefit package for their dependents that was less inclusive than the dependency coverage provided to married female employees.

The 8th Circuit reasoned that conclusion was consistent with its reading of the plain text of Title VII as requiring an employee who seeks relief under the statute to have suffered discrimination on the basis of her own protected characteristic.

The court also pointed out that the decisions from other courts of appeals Amber cited also rested on the conclusion that the discrimination in those cases was based on an employee’s own protected characteristic, even if the significance of that characteristic was defined in relation to the characteristics of a third party. The cases she cited therefore provided little support for her argument that she could sue her employer under Title VII. According to the court, there was no plausible argument that Essentia’s failure to cover gender reassignment treatment for her son amounted to discrimination against Amber on the basis of her own sex.

Amber also cited Thompson v. N. Am. Stainless, LP, in support of her arguments. In that case, Eric Thompson and his fiancé, Miriam Regalado, were both employed by North American Stainless (NAS). After Regalado filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC), Thompson was fired. He subsequently sued, alleging NAS fired him to retaliate against Regalado for filing a charge with the EEOC.

The Supreme Court concluded that (1) if the facts he alleged were true, NAS’s firing of him violated Title VII and (2) he fell within the zone of interests protected by Title VII. Amber characterized Thompson as recognizing the right of an employee who hadn’t engaged in protected activity himself to bring a claim under Title VII, supporting her right to bring a claim against her employer for discrimination on the basis of her son’s protected characteristics.

However, the 8th Circuit distinguished the Thompson case from Amber’s case in two meaningful ways. First, Thompson involved Title VII’s antiretaliation provision, not its substantive antidiscrimination provisions, and the Supreme Court noted that Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct, in contrast to the narrower interpretation given to the law’s substantive antidiscrimination provisions.

Second, both the person who had engaged in protected activity (Regalado) and the person who was fired (Thompson) were employed by NAS. Therefore, Amber couldn’t rely on the case to establish that the protections of Title VII extend to an employer’s discrimination against an employee’s beneficiary who doesn’t have an independent relationship with the employer.

For all of those reasons, the 8th Circuit agreed with the district court that Title VII didn’t protect Amber under the circumstances presented in her case. It therefore affirmed the district court’s dismissal of her lawsuit.

Bottom Line

Although the court does not address whether Title VII’s protection against sex-based discrimination extends to transgendered people, it is an excellent reminder that the Act protects only employees—not their family members—from unlawful employment actions.

Steve Jones is an attorney Jack Nelson Jones & Bryant, P.A and an editor of the Arkansas Employment Law Letter. He can be reached at sjones@jacknelsonjones.com.