Why We Need ENDA

There was an article in the Hartford Courant about a lesbian couple who were denied health insurance coverage from her employer. The company based in Tennessee said that they didn’t have to comply with the Connecticut non-discrimination law.

Woman Sues West Hartford Employer For Allegedly Failing To Provide Health Insurance To Her Wife

By JULIE STAGIS
January 28, 2014

WEST HARTFORD — An employee of Brookdale Place of West Hartford has filed a discrimination complaint against the company for refusing to provide health insurance to her wife because they are a same-sex couple.

Kerry Considine of Griswold is a licensed physical therapist for Brookdale Senior Living, a Tennessee-based company that operates more than 550 senior living facilities, including four in Connecticut.
[…]
"I was told on the phone that Brookdale did not offer health insurance coverage to same-sex spouses, even though I am otherwise qualified to receive those benefits," Considine wrote in the complaint.

She emailed the department to request that Renee be added to her policies on the day of their wedding; the request was denied in a Nov. 4 email, according to the complaint.

"Brookdale has refused and continues to refuse to provide spousal health and dental insurance coverage for my spouse because of our same-sex sexual orientation," Considine said in the complaint. "As a result of Brookdale's refusal and continued refusal to provide spousal health and dental insurance coverage for Renee, we have suffered negative financial, health, as well as emotional and physical harm and pain."

Can the company legally discriminate against LGBT employees in Connecticut? Well it depends if the company is self-insured under the Employee Retirement Income Security Act of 1974 (ERISA) which is a federal law not a state law. Since there is no federal protection against sexual-orientation the Tennessee company is free to discriminate.


In another Courant article mentioned a Supreme Court rules about ERISA and state laws,

But Brookdale is self-insured. Self-funded insurance plans are governed by the Employee Retirement Income Security Act of 1974 (ERISA), and a 1983 Supreme Court decision said ERISA takes precedence over state employment and insurance laws, including Connecticut's sexual orientation discrimination laws.

Title VII of the Civil Rights Act — under which Considine filed her complaint — makes it illegal 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." Because of ERISA, Connecticut's sexual orientation discrimination protections do not apply, according to Wu [Janson Wu of Gay & Lesbian Advocates & Defenders, who is representing Ms. Considine].

For us there is case law that gives us protection under federal law, numerous courts and the EEOC have ruled that trans-people are covered under Title VII of the Civil Rights Act of 1964, sex discrimination. However, there have been no court cases that ruled sexual orientation is covered under Title VII, which is why we need the Employee Non-Discrimination Act (ENDA).

This time the shoe is on the other foot, states have passed non-discrimination laws for sexual orientation but not for gender identity or expression and the lesbians and gays have said, “don’t worry we will come back for you.” Well no we can say the same for them, but we should come back for them. We should not become the same as them, that is why I am planning on going to Washington DC in the spring to lobby for ENDA.

For Ms. Considine her case has a happy ending, the company said,

"We are in the process of revising our corporate-wide health insurance program to include spousal coverage for any marriage or civil union recognized by state law," company spokeswoman Julie K. Davis wrote in the email. "We expect to make this change and offer this coverage within the next 60 days."