Last month’s Bostock decision ruled that Title VII of the 1964 Civil Rights Act protects LGBTQ rights.  This decision has a number of subtle impacts that employers need to be cognizant of, including compensation and by extension employer sponsored health plans.

Section 703(a) of Title VII prohibits an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.”  Title VII considers health insurance and other fringe benefits “compensation, terms, conditions, or privileges of employment.”   With benefit season fast approaching, HR has to review whether their current health plans discriminate because of sexual orientation or gender identity.

The law firm of McDermott Will & Emory recommend that a review of employer sponsored health plans include the following:

• 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).

The Bostock decision will also impact regulations that the U.S. Department of Health and Human Services (HHS) published that repeal a regulation provision that prohibits health care providers or health insurance issuers, including Medicare Advantage plan issuers and Affordable Care Act public exchange plan issuers, from discriminating against people based on gender identity.  The health program antidiscrimination regulations were based on Section 1557 of the Patient Protection and Affordable Care Act.  The Bostock decision will likely strengthen the position of opponents to these new regulations.

The major issue remaining is those employers who are faith based or have strong religious beliefs.  The Bostock decision did not answer the question about the conflict of religion and Title VII requirements under the expanded definition of sex.  Therefore, those employers should consult with legal counsel to ensure any desired religious exclusions are met.

Source:  McDermott Will & Emery 6/22/20, Think Advisor 6/15/20