Nolan - Chipping at The Iceberg

NOLAN.
FINAL 1/7/2008 10:24:23 PM
NOTES
CHIPPING AT THE ICEBERG: HOW

MASSACHUSETTS ANTI-
DISCRIMINATION LAW
CAN SURVIVE ERISA PREEMPTION
AND MANDATE THE EXTENSION OF
EMPLOYEE BENEFITS TO ALL
MARRIED SPOUSES WITHOUT
REGARD TO SEXUAL ORIENTATION*
Joel M. Nolan**
Abstract: This Note examines the preemption provisions of the Employee

Retirement Income Security Act (ERISA) and applies a preemption
analysis to Massachusettss anti-discrimination law in the context of same-
sex marriage. The issue is whether a Massachusetts employer that offers a
self-funded insurance plan to its employee population is required to
recognize the legally married same-sex partners of its employees under the
plan so as not to discriminate against such persons on the basis of their
sexual orientation. This Note argues that such a claim is cognizable under
Massachusetts anti-discrimination law and falls within the purview of the
Massachusetts Commission Against Discrimination (MCAD). The MCAD
should advance these claims because the liberal interpretation of state anti-
discrimination law is its mandate and because the state anti-discrimination
law can escape ERISAs preemptive sweep. Decisions by courts considering
* NEW ENGLAND LAW REVIEWS contribution to the American Society of Writers on

Legal Subjects (Scribes) 2007-2008 Notes-and-Comments Competition.
** Candidate for Juris Doctor, New England School of Law (2008); M.S., Human
Resources Management, Suffolk University (2004), B.M., Flute & Organizational
Communication, Learning, and Design, Ithaca College (1999).
109
NOLAN. FINAL 1/7/2008 10:24:23 PM
110 NEW ENGLAND LAW REVIEW [Vol. 42:109
ERISA preemption issues in light of same-sex marriage in Massachusetts

will determine the availability of spousal benefits to employees covered
under self-funded plans and may carve an important exception in the
expansive doctrine of federal preemption under ERISA.
INTRODUCTION
The struggle for equality in the United States is consistent throughout
our history and the mantra of equal treatment under law is deeply rooted
in civic discourse.1 Over the last decade, this rallying cry has been
employed in the campaign for recognition of same-sex relationships.2 As
these relationships gain legitimacy under state law through marriage and
civil union status, they remain unprotected under federal law.3 Indeed,
same-sex spouses who are legally married in Massachusetts have the
benefit of protection under state law, but cannot avail themselves of over
1,100 federal rights and benefits afforded to their opposite-sex
counterparts.4
This discrepancy becomes evident in the employment context where
many individuals in same-sex marriages, which are sanctioned under state
law, are unable to secure coverage for their spouses because their
employers are not mandated to recognize their relationships under federal
law.5 The roadblock is the Employee Retirement Income Security Act of
1974 (ERISA),6 which preempts state employment laws that relate to
employee benefits.7
This difficulty has been mitigated in Massachusetts, where, as a result
of the Supreme Judicial Courts groundbreaking decision in Goodridge v.
Department of Public Health, same-sex couples can become legally
married.8 Same-sex couples who do enter into state-sanctioned marriages
find some protection in employment because an employer with insured
employee benefit plans must extend equal opportunities to same-sex
1. James A. Sonne, Love Doesnt Pay: The Fiction of Marriage Rights in the
Workplace, 40 U. RICH. L. REV. 867, 867 (2006).
2. See Janice Kay McClendon, A Small Step Forward in the Last Civil Rights Battle:
Extending Benefits Under Federally Regulated Employee Benefit Plans to Same-Sex
Couples, 36 N.M. L. REV. 99, 99 (2006).
3. Id.
4. Id. at 99-100.
5. Id.
6. Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001 (2000).
7. See id. 1144(a) (ERISAs preemption clause).
8. Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003) ([B]arring
an individual from . . . civil marriage solely because that person would marry a person of the
same sex violates the Massachusetts Constitution.).
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2007] ERISA PREEMPTION 111
spouses and opposite-sex spouses under state insurance laws.9

However, many of the largest employers offer benefit plans that are
subject to provisions of ERISA.10 These employers offer self-funded
benefit programs that are not subject to state insurance law and,
accordingly, fall subject to ERISA provisions.11 ERISAs preemption
clause provides that federal laws supersede state laws that relate to
employee benefit plans.12 While employers in any state are free to offer
benefits to same-sex spouses or domestic partners, they are not required to
do so under federal law.13 Accordingly, employees covered under these
self-insured employee benefit plans do not benefit from state insurance
laws that may provide broader protections than their federal counterparts.14
Notwithstanding this statutory frustration, there is an opportunity to
protect married same-sex spouses through the application of state law, in
that state law can escape ERISA preemption. In Massachusetts, application
of the states anti-discrimination law can survive this preemption
challenge.15 This is of import because the state anti-discrimination law,
Chapter 151B of the Massachusetts General Laws (Chapter 151B),16
provides protected-class status based on sexual orientation.17 The federal
anti-discrimination law, Title VII of the Civil Rights Act,18 does not afford
such protection.
9. McClendon, supra note 2, at 106 (describing an analysis by Gay & Lesbian

Advocates & Defenders, a national gay and lesbian legal advocacy group, that details same-
sex spousal benefits in Massachusetts after Goodridge). In Massachusetts, anti-
discrimination provisions and spousal protections in state insurance law, in addition to the
generally applicable anti-discrimination-in-employment provisions, mandate that an
employer treat all married couples equally, regardless of their sexual orientation. See MASS.
GEN. LAWS ch. 175I, 12(3) (2004) (anti-discrimination provision in insurance
underwriting); MASS. GEN. LAWS ch. 151B, 4(1) (2004) (anti-discrimination provision in
employment); see, e.g., MASS. GEN. LAWS ch. 176G, 5A (2004) (explaining spousal
continuing insurance coverage requirements under state insurance law).
10. McClendon, supra note 2, at 108 (citing a survey by Mercer Human Resources
Consulting that indicates sixty-six percent of U.S. employers with more than 500 employees
are self-insured); Kimberly Blanton, Firms Block Gays Benefits, Cite U.S. Law, BOSTON
GLOBE, Dec. 18, 2004, at A1.
11. See Harvey v. Machigonne Benefits Admrs, 122 F. Supp. 2d 179, 185 (D. Me.
2000).
12. 29 U.S.C. 1144(a) (2000).
13. McClendon, supra note 2, at 108 (ERISAs requirements set a floor, not a
ceiling.).
14. See id. at 106.
15. See infra Part V.
16. MASS. GEN. LAWS ch. 151B, 4(1) (2006).
17. Id.
18. Civil Rights Act, 42 U.S.C. 2000e-2 (2005).
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The Massachusetts state anti-discrimination law also bestowed on the

Massachusetts Commission Against Discrimination (MCAD or the
Commission) the duty to enforce its provisions.19 The Commission is
charged to adopt, promulgate, amend, and rescind rules and regulations
suitable to carry out the provisions of [Chapter 151B] and to investigate
and enforce claims brought under this law.20 Employees who face
discrimination in employment and who are in a protected category bring
claims to the MCAD for investigation, conciliation, and adjudication
consistent with their rights under state law.21
Consider a person who comes before the MCAD alleging
discrimination in employment because his employer refuses to allow him to
add his same-sex spouse to a company employee benefit plan.22 In this
example, the policy is a self-funded vision benefit plan23 and is
administered by an agency, which manages plans only for Massachusetts
employers. This Note will explore the application of state law to claims
such as the fictitious MCAD claim described above by determining under
what circumstances the state law, which protects individuals from
discrimination on the basis of sexual orientation,24 can escape ERISA
preemption. Part I offers an overview of ERISA and an analysis of
congressional intent regarding its scope and preemption clause. Part II
compares federal and Massachusetts anti-discrimination law and examines
the intended scope and application of each. Part III characterizes
Massachusetts as a pioneer for civil rights through prior MCAD decisions
that broadened civil rights and judicial recognition of same-sex marriages.
Part IV analyzes the ERISA preemption clause as applied under federal law
and Massachusetts law. Part V applies this analysis to the example claim
19. MASS. GEN. LAWS ch. 151B, 3 (2006); MASS. GEN. LAWS ch. 6, 56 (2006)
(creating the Massachusetts Commission Against Discrimination).
20. MASS. GEN. LAWS ch. 151B, 3(5)-(6).
21. Id. 3(6)-(7).
22. Claims with these characteristics are presently before the MCAD for adjudication.
See, e.g., Whitehead-Pleaux v. Shriners Hosp. for Children, 04BEM01593 (Mass. Commn
Against Discrimination filed June 16, 2005); see also Webster v. Partners Health Care Sys.,
05BEM01596 (Mass. Commn Against Discrimination filed June 14, 2005). The MCADs
ability to investigate the Webster claim was challenged by the respondent and was heard by
the U.S. District Court for the District of Massachusetts. Partners Healthcare Sys., Inc. v.
Sullivan, No. 06-11436-JLT, 2007 WL 1810218 (D. Mass. June 25, 2007) (holding the
MCAD is enjoined from investigating claims of state-law discrimination under ERISA-
governed employee benefit plans). See infra Part IV.B-C, for a discussion of the relevant
analysis presented in this case.
23. A self-funded plan is one in which the employer assumes fiscal responsibility for the
benefitit is not an insurance contract. See infra Part IV.
24. MASS. GEN. LAWS ch. 151B, 4(1) (2006).
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described above and argues that such claims can and should survive
preemption. Part VI concludes the analysis and calls for the MCAD to
uphold state anti-discrimination laws by fighting for its ability to adjudicate
claims of discrimination in the administration of ERISA-governed
employee benefit plans under state law and by issuing favorable outcomes
to claimants seeking spousal recognition in their employee benefit plans
without regard to sexual orientation.
I. OVERVIEW OF ERISA PREEMPTION AND STATE LAW

A review of ERISAs preemption provision and its impact on state
law is a necessary precursor to determining how a state law can overcome
this powerful statutory provision. ERISA is the federal regulation that
governs most employee benefit plans.25 This legislation arose from
congressional recognition of the rapid and substantial growth of employee
benefit plans and the expanding economic impact of these plans across the
nation.26 Congress recognized that employee benefit plans affect the
security and well-being of millions of employees and their dependents.27
Such widespread growth was troublesome, given the lack of employee
information regarding, and safeguards surrounding, such plans.28 Congress
also acknowledged that employee benefit plans impact the stability of
industry and commerce and are a national public interest.29
To protect these important benefit plans from adversely affecting the
economy, Congress enacted ERISA to improve their equitable character
and soundness.30 To this end, Congress specifically delineated disclosure
and reporting requirements, minimum standards for fiduciary
responsibility, vesting requirements for employees with significant years of
service, and termination insurance.31 These federally mandated fiduciary
standards [are] considered desirable because [they] will bring a measure
25. McClendon, supra note 2, 107; see 29 U.S.C. 1001-1461 (2000).

26. S. SUBCOMM. ON LABOR OF THE COMM. ON LABOR AND PUBLIC WELFARE, 94TH
CONG., LEGISLATIVE HISTORY OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, PUBLIC LAW 93-406, at 3-6 (Comm. Print 1976) (H.R. 2, 93rd Cong. 2(a)-(c) (1973)
(as initially introduced including findings and declaration of policy)). This Act was
subsequently codified in 29 U.S.C. 1001(a) (2000) (detailing congressional findings
regarding the need for regulation of employee benefit plans and finding support for such
legislation based on the impact of employee benefit plans on interstate commerce and under
the federal taxing power).
CONG., supra note 26, at 3-6.
28. See id. at 5.
29. Id. at 3-5.
30. Id. at 5-6.
31. Id. at 3-6.
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of uniformity in an area where decisions under the same set of facts may
differ from state to state.32
A. ERISAs Scope
Overall, ERISA was designed to simplify and unify33 employee
benefit plan regulation and to eliminate[] the threat of conflicting or
inconsistent State and local regulation.34 The legislature created
substantive regulations that preempt any and all state law relating to
covered benefit plans to achieve this end.35
Plans subject to ERISA legislation are of two types: pension plans
and welfare plans.36 Pension plans provide retirement benefits while
welfare plans provide fringe benefits, such as medical, dental, and vision
insurance.37 Pension plans include benefits that provide retirement income
or result in income deferral regardless of how the plans calculate
contributions or distribute benefits.38 The term welfare plan is more
inclusive and covers those plans established for its participants or their
beneficiaries to provide benefits including, but not limited to, medical care,
support upon sickness, disability, unemployment, vacation time,
scholarship funds, prepaid legal services, or any other such perquisites.39
Under ERISA, the term employee benefit plan is inclusive of both
types such that a covered plan may be a pension, a welfare plan, or both.40
Determining if a benefit is considered a plan under ERISA has been a
source of much litigation.41 In Donovan v. Dillingham, the Eleventh Circuit
Court of Appeals established a test to determine if benefits qualified as an
employee benefit plan. The test looked for four characteristics: intended
benefits, intended beneficiaries, a source of financing, and a procedure to
32. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11 (1987) (Pre-emption ensures
that the administrative practices of a benefit plan will be governed by only a single set of
regulations.) (quoting H.R. RPTR. NO. 93-533, at 12 (1973)).
33. McClendon, supra note 2, at 107.
34. Fort Halifax, 482 U.S. at 9 (quoting 120 CONG. REC. 29197 (1974) (statement of
Sen. Williams)).
35. McClendon, supra note 2, at 107 (describing ERISAs preemption clause).
36. Jeffrey G. Sherman, Domestic Partnership and ERISA Preemption, 76 TUL. L. REV.
373, 392 (2001).
37. Id. at 392-93.
38. 29 U.S.C. 1002(2)(A) (2000). Several models for the calculation of pension plans
are feasible under ERISA, subject to the statutes substantive provisions regarding
participation and vesting, funding, and fiduciary responsibility. See id. 1051-1114 (parts
II-IV of ERISA).
39. 29 U.S.C. 1002(1) (2000).
40. Id. 1002(3).
41. Sherman, supra note 36, at 395.
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apply for and collect benefits.42 This test has been affirmed in every
federal circuit that has addressed the issue.43
In Fort Halifax Packing Co. Inc. v. Coyne, the Supreme Court did not
find the existence of an employee benefit plan when examining a state law
that required employers to provide severance benefitsthe single payment
event did not create an employee benefit plan.44 In Massachusetts v.
Morash, the Court again declined to find the existence of an employee
benefit plan where an employer paid liabilities incurred from a vacation
accrual policy from their general funds, and not funds specifically reserved
to pay compensated employees for the unused portion of these benefits.45
These decisions narrow the scope of those employer activities considered
to constitute an employee benefit plan because more than either a single
payment event or payments made from general employer funds are
required for a plan to fall within ERISAs scope.46
B. The Savings Clause

ERISA expressly carves out exceptions to the plans covered by its
regulations. The savings clause provides that any state law that regulates
insurance is not subject to ERISA preemption.47 The Court has applied this
savings clause where a state law substantially affects the type of risk
pooling arrangements that insurers may offer.48 State insurance laws
control what employee benefit plans an insurance company can offer to
employers.49 In Kentucky Assn of Health Plans, Inc. v. Miller, the Supreme
Court determined that a state law that regulates insurance must be
specifically directed toward entities engaged in insurance and
substantially affect the risk pooling arrangement between the insurer and
42. 688 F.2d 1367, 1372 (11th Cir. 1982); accord Sherman, supra note 36, at 395.
43. Kenney v. Roland Parson Contracting Corp., 28 F.3d 1254, 1257-58 (D.C. Cir.
1994) (collecting cases).
44. 482 U.S. 1, 12 (1987) (emphasis omitted).
45. 490 U.S. 107, 119-21 (1989).
46. See Fort Halifax, 482 U.S. at 12; Morash, 490 U.S. at 119-21.
47. 29 U.S.C. 1144(b)(2)(A) (2000).
48. See UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 374 (1999); see also Cellilli
v. Cellilli, 939 F. Supp. 72, 76 (D. Mass. 1996). According to that court, the question of
whether a state law regulates the business of insurance is a function of whether the law (1)
spreads risk, (2) integrally affects the relationship between the insurer and the insured, and
(3) is limited to the risk spreading parties. Id.
49. See, e.g., Cellilli, 939 F. Supp. at 77 (Section 5A [of MASS. GEN. LAWS ch. 176G]
directly controls the terms of insurance contracts. . . . It does not merely have an impact on
the insurance industry; it is aimed at it. (quoting FMC Corp. v. Holliday, 498 U.S. 52, 61
(1990))); Sherman, supra note 36, at 400.
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the insured.50 Further, since very few benefits under an employee benefit
plan are mandatory under ERISA,51 state regulation of insurance that
impacts the substance of such a plan is not preempted.52 As such, the
employee benefit plans purchased by employers as insurance contracts
are saved from ERISA preemption under the savings clause.53
C. The Deemer Clause

Plans subject to the savings clause are qualified by the deemer
clause, which states, [n]either an employee benefit plan . . . nor any trust
established under such a plan [] shall be deemed to be an insurance
company . . . or to be engaged in the business of insurance . . . for purposes
of any law of any State purporting to regulate insurance companies [or]
insurance contracts.54 This clause subjects self-funded insurance plans to
ERISA preemption while their insurance-based counterparts are saved
such that they are not subject to ERISA preemption, but are instead subject
to state law.55 Indeed, in Metropolitan Life Ins. Co. v. Massachusetts, the
Supreme Court acknowledged it was creating a distinction between insured
and self-funded employee benefit plans.56 The new rule subjected insured
plans, but not self-funded plans, to state regulation.57 In effect, only self-
funded employee benefit plans are ripe for ERISA preemption analysis
because insured plans are clearly not preempted.58
D. The Preemption Clause and Its Impact on State Law

ERISAs preemption clause (also known as supersedure) provides
that the provisions of [ERISA] . . . shall supersede any and all State laws
50. 538 U.S. 329, 342 (2003) (clarifying what constitutes a state regulation of
insurance). Risk pooling refers to the transferring or spreading of claim risks to the
policyholder under insurance contracts (mitigating risks under an insurance plan among
many policyholders) and is the hallmark of an insurance contract. See id. at 338-39.
51. There are very few substantive benefit mandates contained in ERISA; exceptions
include required coverage under group health insurance plans for hospital stays after child
birth and for reconstructive surgery following a mastectomy. See 29 U.S.C. 1185 (2000);
29 U.S.C. 1185b (2000).
52. See, e.g., Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 736 (1985).
53. See Cellilli, 939 F. Supp. at 76-77 (explaining that an insurance plan that pools risks
faced by plan participants and is subject to state insurance law is not preempted under
ERISAs savings clause).
54. 29 U.S.C. 1144(b)(2)(B) (2000).
55. See Metro. Life, 471 U.S. at 740-41.
56. Id. at 747.
57. Id.
58. See Harvey v. Machigonne Benefits Admrs, 122 F. Supp. 2d 179, 185
(D. Me. 2000).
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insofar as they may now or hereafter relate to any employee benefit plan.59
Those self-funded plans that are not saved are subject to the relate[s] to
test contained in the preemption clause.60 The judicial interpretation of the
preemption clause will be examined in detail in Part IV,61 but a review of
its scope is useful as a preliminary matter because any preemption analysis
draws upon the congressional intent underlying the relevant federal law.62
Congress created ERISA to implement a uniform and consistent
application of legal standards to the administration of employee benefits
nationwide.63 This goal is facilitated through the preemption clause because
it is this provision that mandates the primacy of ERISA standards in the
employee benefit context.64 The Supreme Court interpreted Congresss
inclusion of the preemption clause to mean that Congress intended to
compel the use of federal standards, regardless of whether the relevant
language is explicitly stated or implicitly contained in the legislations
structure and purpose.65 In fact, the Court has found the preemption clause
to be broad in scope and designed to supersede not only laws that directly
conflict with ERISAs substantive provisions, but any state law related to
an employee benefit plan.66
Congressional records surrounding the enactment of ERISA support
this judicial interpretation of the scope of ERISAs preemption clause.67
Both the House and Senate versions of ERISA provided for preemption of
state laws.68 The intent was for the Act to supersede state laws that covered
the same subject matters,69 except for those laws and benefit plans
explicitly exempted.70 The underlying purpose was to eliminate the threat
59. 29 U.S.C. 1144(a) (2000).

60. See id.
61. See infra Part IV.
62. Stephen F. Befort, Demystifying Federal Labor and Employment Law Preemption,
13 LAB. LAW. 429, 429 (1998) (explaining that the Supremacy Clause of the U.S.
Constitution authorizes, but does not compel, Congress to preempt state law).
63. See infra notes 69-72 and accompanying text.
64. Befort, supra note 62, at 438; see also 29 U.S.C. 1144(a) (2000).
65. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983).
66. Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 737 (1985).
67. See supra notes 26-32 and accompanying text.
CONG., supra note 26, at 4770 (Employee Retirement Income Security Act of 1974
Conference Report).
CONG., supra note 26, at 3820 (H.R. 2, 93rd Cong. 699(a) (1974) (with amendments as
passed by the Senate)).
70. For example, state insurance and banking laws are exempted under the savings
clause. See supra Part I.B.
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of conflicting and inconsistent state and local regulations,71 reflecting a

federal interest in uniformity.72 Some considered such field preemption to
be the crowning achievement of ERISA.73
With preemption, Congress was concerned primarily with state laws
related to fiduciary duties, such as those requiring compelled disclosures
from private welfare or pension plans, imposing fiduciary requirements on
such plans, imposing penalties for the failure to fund such plans, and
providing state termination insurance.74 Certainly, this focus is consistent
with the purposes of ERISA, as it protects the security and fiscal viability
of welfare and pension plans.75
Congress envisioned that ERISAs substantive provisions would be
interpreted using federal common law.76 ERISA provides that its provisions
shall not be construed to alter, amend, modify, invalidate, impair, or
supersede any law of the United States or any related regulation.77 This
provision was applied in the discrimination context in Shaw v. Delta Air
Lines, Inc., where the Court relied on federal anti-discrimination law as a
compliment to ERISA because the legislation does not, in itself, proscribe
discrimination in the provision of employee benefits.78 Here, the Court
found that, insofar as a state employment law prohibited discrimination in a
manner consistent with federal anti-discrimination law, the state law was
not preempted; however, the use of a state employment law to proscribe
discrimination in an area beyond federal protection did succumb to
ERISAs preemption clause.79 It is clear then that ERISA was intended, and
has been interpreted, to be applied in concert with federal common law but
not with state laws that fall within its scope.80
CONG., supra note 26, at 4665, 4670 (Conference Report on H.R. 2, Employee Retirement
Income Security Act of 1974 (statement of Rep. Dent)).
Conference Report).
CONG., supra note 26, at 4670 (Conference Report on H.R. 2, Employee Retirement Income
Security Act of 1974 (statement of Rep. Dent)).
Conference Report).
75. See supra Part I.
76. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56 (1987).
77. 29 U.S.C. 1144(d) (2000).
78. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91 (1983).
79. Id. at 100-03; accord Sherman, supra note 36, at 406-07.
80. Pilot Life Ins., 481 U.S. at 56.
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However, the Supreme Court has carefully applied the preemption

clause and does not treat ERISAs apparent preemptive scope as a
necessary or automatic conclusion.81 In New York State Conference of Blue
Cross & Blue Shield Plans v. Travelers Ins. Co., the Court states that
inquiries into federal preemption of state law start with the presumption
that Congress does not intend to supplant state law.82 Indeed, Congress
did not intend to preempt all state laws that might impact benefits, but only
those affecting the administration of benefits.83 The Court suggests that
state law preemption must first meet the tests associated with ERISAs
relates to provisionthey are not presumably superseded.84 It is
important to recognize that an opportunity exists for a state to create and
enforce laws that incidentally impact employee benefit plans but do not
impact their administration, because the state laws do not relate to
employee benefit plans under ERISAs preemption tests.85
II. FEDERAL AND MASSACHUSETTS ANTI-DISCRIMINATION LAW

The gap between federal and Massachusetts anti-discrimination laws
highlights the need for recourse under state protections from discrimination
based on sexual orientation where federal protections fall short.
Massachusetts residents are afforded protection from discrimination based
on sexual orientation,86 but such protection is not provided federally.87
A. Federal Protections
Federal anti-discrimination law in the employment context is codified
in four statutes: Title VII of the Civil Rights Act of 1964;88 the Age
Discrimination in Employment Act;89 the Americans with Disabilities
Act;90 and the Pregnancy Discrimination Act.91 Title VII prohibits
discrimination on the basis of race, color, religion, sex, or national origin
81. See N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,
514 U.S. 645, 654 (1995).
82. Id.
83. Westinghouse Elec. Supply Co. v. MCAD, 9 Mass. L. Rptr. 661, 663 (Mass. Super.
Ct. 1999).
84. See Travelers, 514 U.S. at 655.
85. See 29 U.S.C. 1144(a) (2000); infra Part V.
86. See infra Part II.B.
87. See infra Part II.A.
89. Age Discrimination in Employment Act, 29 U.S.C. 623 (2000).
90. Americans with Disabilities Act, 42 U.S.C. 12132 (2000).
91. Pregnancy Discrimination Act, 42 U.S.C. 2000e(k) (2000).
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for employers with fifteen or more employees.92 The Age Discrimination in

Employment Act prohibits discrimination on the basis of age.93 The
Americans with Disabilities Act prohibits discrimination because of a
disability where the employer can make a reasonable accommodation for
the disability.94 And finally, the Pregnancy Discrimination Act is an
amendment to the Civil Rights Act that prohibits discrimination on the
basis of pregnancy, childbirth, or related medical conditions, and requires
employers to treat pregnancy-related conditions as they would any other
short-term disability.95
These statutes offer broad protections to traditionally
underrepresented or vulnerable classes of individuals in the employment
context, but were never intended to supersede state protections.96 In fact,
each of the statutes affirmatively disclaims an intent to occupy the field of
employment discrimination law or to oust state regulation.97 Accordingly,
state anti-discrimination statutes are only preempted by their federal
counterparts when they fail to provide protections conferred under federal
lawthe federal anti-discrimination laws provide a baseline of acceptable
coverage.98
These federal protections are complementary to ERISA
administration and fall within the body of federal common law used to
interpret its regulations.99 It is notable that federal common and statutory
law does not include sexual orientation as a protected class.100 In Oncale v.
Sundowner Offshore Services, Inc.101 and Price-Waterhouse v. Hopkins,102
the Supreme Court recognized that an individual has the right to be free
from sexual harassment by same-sex harassers and discrimination based on
gender stereotyping.103 However, this reasoning did not persuade federal
92. 42 U.S.C. 2000e, 2000e-2.

93. 29 U.S.C. 623.
94. 42 U.S.C. 12111, 12132.
95. 42 U.S.C. 2000e(k).
96. See Sherman, supra note 36, at 406-07.
97. Befort, supra note 62, at 441; see also Sherman, supra note 36, at 406-07.
98. Befort, supra note 62, at 441-42; see also California Fed. Sav. & Loan Assn v.
Guerra, 479 U.S. 272, 292 (1987) (holding that a state statute was not preempted by Title
VII because it was not inconsistent with the purposes of the federal statute, nor does it
require the doing of an act which is unlawful under Title VII).
99. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56 (1987).
100. Andrea Meryl Kirshenbaum, Because of . . . Sex: Rethinking the Protections
Afforded Under Title VII in the Post-Oncale World, 69 ALB. L. REV. 139, 155 (2005).
101. 523 U.S. 75 (1998).
102. 490 U.S. 228 (1989).
103. Oncale, 523 U.S. at 82 ([S]ex discrimination consisting of same-sex sexual
harassment is actionable under Title VII.); Price Waterhouse, 490 U.S. at 228 (citing the
NOLAN. FINAL 1/7/2008 10:24:23 PM
circuit courts that Title VII prohibits discrimination based on sexual

orientation.104 It is well settled that sexual orientation is not a protected
class under Title VII.105
Further, in the context of same-sex marriage, the Defense of Marriage
Act (DOMA) expressly stipulates that federal marriage and associated
rights are only available to opposite-sex couples.106 The Act defines
marriage and spouse as relationships entered into under state law only
between opposite-sex couples.107 In addition, DOMA provides that no state
will be required to recognize the marriages of same-sex couples lawfully
entered into in another state.108 This Act marks a change in how marriage
was defined for purposes of federal benefitsthe union was previously
determined according to the laws of the state granting the marriage
license.109 This is a marked deviation from the full faith and credit
provisions of the U.S. Constitution.110 The effect of this shift is to bar
marriage for same-sex couples for purposes of federal rights because their
relationship does not meet the codified definition, even where their
district courts determination that liability arose for the defendant when it unlawfully
discriminated against [the plaintiff] on the basis of sex by consciously giving credence and
effect to partners comments about her that resulted from sex stereotyping).
104. Kirshenbaum, supra note 100, at 155.
105. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (It is
clear, however, that Title VII does not prohibit discrimination based on sexual
orientation.); Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000) (The law is well-settled
in this circuit and in all others to have reached the question . . . Title VII does not prohibit
harassment or discrimination because of sexual orientation.); Spearman v. Ford Motor Co.,
231 F.3d 1080, 1084 (7th Cir. 2000) ([H]arassment based solely upon a persons sexual
preference or orientation (and not on ones sex) is not an unlawful employment practice
under Title VII.); Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704
(7th Cir. 2000) ([H]arassment based solely upon a persons sexual preference or orientation
(and not on ones sex) is not an unlawful employment practice under Title VII.); Higgins v.
New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) ([W]e regard it as
settled law that, as drafted and authoritatively construed, Title VII does not proscribe
harassment simply because of sexual orientation.); Williamson v. A.G. Edwards & Sons,
Inc., 876 F.2d 69, 70 (8th Cir. 1989) (Title VII does not prohibit discrimination against
homosexuals.); see also Kirshenbaum, supra note 100, at 155.
106. Defense of Marriage Act, 1 U.S.C. 7 (2000) (defining marriage as only a legal
union between one man and one woman as husband and wife, and the word spouse refers
only to a person of the opposite sex who is a husband or a wife.).
107. Id.; McClendon, supra note 2, at 99.
108. 28 U.S.C. 1738C (2000); Mark Strasser, DOMA and the Two Faces of Federalism,
32 CREIGHTON L. REV. 457, 457-58 (1998).
109. McClendon, supra note 2, at 99.
110. See U.S. CONST. art. IV, 1 (codified as Full Faith and Credit, 28 U.S.C. 1738
(2000)); Strasser, supra note 108, at 457 (characterizing DOMA as an exception to the
Constitutional full faith and credit requirement).
NOLAN. FINAL 1/7/2008 10:24:23 PM
marriage is otherwise lawful according to the state.111

Federal laws do not consider sexual orientation a protected class and
do not permit same-sex marriage.112 Individuals with a same-sex
orientation who seek the protection of their relationship may only avail
themselves of protections afforded within their state of residence.113
B. Massachusetts State Protections

For homosexual residents of Massachusetts, state law is far more
protective of discrimination based on sexual orientation and permissive of
same-sex marriage. Chapter 151B of the Massachusetts General Laws is
the states primary anti-discrimination statute.114 In Massachusetts, an
employer may not discriminate on the basis of race, color, religious creed,
national origin, sex, sexual orientation . . . genetic information, or
ancestry.115 The statute protects more workers than its federal counterparts
because it applies to employers with six or more employees,116 as opposed
to the fifteen required under federal law.117 In addition, the Massachusetts
statute also protects individuals who seek insurance, housing, credit, or
mortgage lending services.118
Several other Massachusetts laws protect individuals in the
employment context.119 The states public accommodation laws mandate
reasonable accommodations, where feasible, for disabled individuals.120
The states sexual harassment law provides for a harassment-free
workplaceit prohibits quid pro quo harassment and harassment based on
hostile work environment.121 The states maternity leave law also protects
against pregnancy discrimination.122 While the harassment and pregnancy
laws largely track their federal counterparts, they afford more protection
because, like the anti-discrimination law, they apply against employers
111. See Singer v. Hara, 522 P.2d 1187, 1191 (Wash. Ct. App. 1974); Sherri L.
Toussaint, Defense of Marriage Act: Isnt It Ironic . . . Dont You Think? A Little Too
Ironic?, 76 NEB. L. REV. 924, 941 (1997).
112. Civil Rights Act, 42 U.S.C. 2000e-2 (2000); see supra Part II.A.
113. See McClendon, supra note 2, at 99-100.
114. MASS. GEN. LAWS ch. 151B (2004).
115. Id. 4(1) (emphasis added).
116. Id. 1(5).
118. Ch. 151B, 4(3)-(11).
119. See generally MCAD, For Attorneys, http://www.mass.gov/mcad/forAttorneys.html
(last visited Oct. 4, 2007) (describing laws enforced by the MCAD).
120. MASS. GEN. LAWS ch. 272, 92A, 98, 98A (2006).
121. Ch. 151B, 3A.
122. See MASS. GEN. LAWS ch. 149, 105D (2006).
NOLAN. FINAL 1/7/2008 10:24:23 PM
with six or more employees.123

In addition, same-sex marriage is legal in Massachusetts.124 In 2003,
the Massachusetts Supreme Judicial Court (SJC) decided Goodridge v.
Department of Public Health, and their decision changed the definition of
marriage in Massachusetts.125 The SJC held that denying homosexual
individuals the right to marry people of the same sex was inconsistent with
the Massachusetts state Constitution.126 The SJC stated that the
Massachusetts Constitution is, if anything, more protective of individual
liberty and equality than the Federal Constitution.127 In fact, the states
constitution demands broader protection of private life and fundamental
rights.128 From this perspective, the court reasoned that the state is not
constitutionally authorized to deny same-sex couples marriage licenses in
order to bar them from the civil institution of marriage.129
This evolution marks a change in the history of marriage in
Massachusetts.130 Like nearly all other states, Massachusetts understood
marriage to mean the commitment of one man and one woman that was
sanctioned by the state and afforded protections as an institution.131 The
courts decision in Goodridge redefined the institution in Massachusetts
Massachusetts citizens are permitted to enter the institution of marriage
without regard to the sex of their chosen partner.132 The crucial element of
the courts reasoning is that the traditional, opposite-sex definition of
marriage historically employed in the state is inconsistent with the principle
of equality guaranteed in the Massachusetts Constitution.133
123. Id. 105D (stating, [f]or the purposes of this section, an employer shall be
defined as in subsection 5 of section one of chapter [151B]).
124. See Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003).
125. See id.
126. Id.
127. Id.
128. Id. at 948-49.
129. See id. at 950.
130. See infra notes 131-32 and accompanying text.
131. See, e.g., Milford v. Worcester, 7 Mass. 48, 52 (1810) (defining marriage as an
engagement, by which a single man and a single woman, of sufficient discretion, take each
other for husband and wife). The definition of marriage was viewed as a derivative of
English and international common law. Commonwealth v. Knowlton, 2 Mass. 530, 535
(1807); Commonwealth v. Lane, 113 Mass. 458, 462-63 (1873) ([W]hen the statutes are
silent, questions of the validity of marriages are to be determined by the jus gentium, the
common law of nations . . . .).
132. Goodridge, 798 N.E.2d at 969 ([B]arring an individual from . . . civil marriage
solely because that person would marry a person of the same sex violates the Massachusetts
Constitution.).
133. Id.
NOLAN. FINAL 1/7/2008 10:24:23 PM
Overall, Massachusetts protects its homosexual residents.134

Discrimination based on sexual orientation is proscribed in the
Commonwealth by statute.135 Same-sex marriages are fully recognized by
the state and enjoy the same status as opposite-sex marriages.136 These
protections are products of a progressive recognition of civil rights in
Massachusetts.137
III. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION: DECISIONS

THAT ADVANCE CIVIL RIGHTS FOR HOMOSEXUAL INDIVIDUALS
In addition to statutory protections, Massachusetts homosexual
residents benefit from MCAD decisions that protect and expand their civil
rights. The Commission has applied chapter 151Bs prohibition on
discrimination based on sexual orientation broadly138 and has applied other
state laws to protect transsexual individuals.139 In so doing, the
Commission has produced well-reasoned decisions that withstand judicial
review.140
A. Protection from Discrimination Based on Sexual Orientation

Applied to Same-Sex Sexual Harassment, Unlawful Termination,
Retaliation, and Public Accommodation
The MCAD was established to enforce the states anti-discrimination
laws and has the primary responsibility of determining the scope of such
laws.141 In this role, the Commission has applied chapter 151Bs protection
from discrimination on the basis of sexual orientation142 in myriad contexts.
The Commission has frequently interpreted chapter 151B to prohibit
sexual harassment based on sexual orientation in the workplace.143 In
Rieves v. G & J Maintenance Co., the Commission found an employer
liable for quid-pro-quo sexual harassment of a heterosexual man by his
homosexual manager based on the victims sexual orientation.144 The
Commission held that the Complainant was a member of a protected class
134. See MASS. GEN. LAWS ch. 151B, 4(1) (2004); see also infra Part III.
135. Ch. 151B, 4(1) (2004).
137. See supra Part II.B.
138. See infra Part III.A.
139. See infra Part III.B.
140. See infra Part III.C.
141. Stonehill College v. MCAD, 808 N.E.2d 205, 217 (Mass. 2004).
142. MASS. GEN. LAWS ch. 151B, 4(1) (2004).
143. Rieves v. G & J Maint. Co., 24 MDLR 136, 138 (Mass. Commn Against
Discrimination May 7, 2002).
144. Id.
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because chapter 151B protects individuals against sexual harassment by a

member of the same sex.145
The Commission extended this same protection to hostile work
environment sexual harassment among same-sex co-workers in DeLara v.
La Chimere Skin Care Salon, Inc., where a woman was sexually harassed
by a female co-worker and was subsequently terminated in retaliation for
complaining about the harassment.146 The Commission reiterated that
same-sex harassment is within the protections of chapter 151B and
complaints about such behavior are protected activities.147
Further, the Commission has held that victims of sexual harassment
based on sexual orientation are entitled to damages, including damages for
emotional distress and harm incurred by such harassment.148 In McGrath v.
United Steelworkers of America, the Commission awarded such damages to
a complainant who had been harassed by union members at his workplace
and was repeatedly subjected to outrageous and highly offensive
statements.149 Importantly, this decision was also one in which the
Commission took jurisdiction over a claim under state anti-discrimination
law despite preemption language in the National Labor Relations Act
(NLRA).150 The Commission reasoned that state action is not preempted
when the regulated conduct touches interests so deeply rooted in local
feeling and responsibility that, in the absence of compelling congressional
direction, courts cannot infer that Congress has deprived the states of the
power to act.151 While preemption provisions differ between the NLRA
and ERISA,152 it is important to recognize that the MCAD has exerted, and
should continue to exert, jurisdiction to enforce its mandate where federal
145. Id.
146. 24 MDLR 381, 381-83 (Mass. Commn Against Discrimination Oct. 21, 2002).
147. Id. at 383.
148. McGrath v. United Steelworkers of America, 26 MDLR 178, 202-03 (Mass.
Commn Against Discrimination July 28, 2004).
149. Id. at 197-98, 202.
150. Id. at 192-93. The NLRA has full jurisdiction over matters of national labor policy.
See National Labor Relations Act, 29 U.S.C. 151 (2000). A state must yield its jurisdiction
where its actions threaten to interfere with NLRA jurisdiction. San Diego Bldg. Trades
Council v. Garmon, 359 U.S. 236, 243 (1959).
151. McGrath, 26 MDLR at 193 (quoting Garmon, 359 U.S. at 244).
152. Compare supra Part I.A. (detailing ERISA preemption), with Angel Gomez, III,
Preemption and Preclusion of Employee Common Law Rights by Federal and State
Statutes, 11 INDUS. REL. L.J. 45, 48 (1989) (explaining that NLRA preemption occurs when
state jurisdiction interferes with the jurisdiction of the National Labor Relations Board)
(citing Garmon, 359 U.S. 236). The MCAD noted, discrimination in employment is
generally considered to be a peripheral concern of the [NLRA]. McGrath, 26 MDLR at
193 (quoting Garmon, 359 U.S. at 243).
NOLAN. FINAL 1/7/2008 10:24:23 PM
rights do not adequately protect the civil rights of Massachusetts citizens.153

The MCAD has also recognized a cause of action for unlawful
discharge on the basis of sexual orientation.154 In DAgostino v. Salvation
Army, the Commission held an employer liable when it terminated a
homosexual employee based on stereotypical assumptions resulting from
his sexual orientation.155
The MCAD has even extended protection to individuals who are
terminated in retaliation for complaining of discriminatory behavior on the
basis of sexual orientation.156 In Morgan v. Boston Market, the
Commission found an employer liable after it unfairly reprimanded and
eventually terminated a homosexual employee because he complained that
a dress policy which prohibited men from wearing earrings was
discriminatory on the basis of his sexual orientation.157 The complainant
was awarded back pay and damages for emotional distress and was
reimbursed for medical expenses because of his employers unlawful
acts.158
Outside of the employment context, the MCAD has been aggressive
in extending protection of individuals based on their sexual orientation in
the area of public accommodation.159 Massachusetts General Laws chapter
272, section 98 empowers the Commission to protect individuals from
discrimination on the basis of sexual orientation in places of public
accommodation.160 They have acted under this authority in several recent
cases.161
Two cases illustrate the Commissions position on discrimination in
153. See McGrath, 26 MDLR at 193. The Commission noted that protection from
discrimination in employment on the basis of sexual orientation is a deeply rooted belief in
Massachusetts and is a significant state interest. Id.
154. DAgostino v. Salvation Army, 25 MDLR 176, 178 (Mass. Commn Against
Discrimination May 23, 2003).
155. Id. The employee was falsely accused of sexual misconduct with a minor; he was
exonerated of those charges but was terminated anyway, which the Commission determined
was unlawful. Id. at 177-78.
156. Morgan v. Boston Market, 24 MDLR 45, 45-47 (Mass. Commn Against
Discrimination March 4, 2002).
157. Id.
158. Id. at 48. Total damages with interest exceeded $100,000. Id.
159. A place of public accommodation is any place which is open to and accepts or
solicits the patronage of the general public. MASS. GEN. LAWS ch. 272, 92A (2004).
160. Ch. 272, 98.
161. See, e.g., Cashman v. Zekes, 24 MDLR 323 (Mass. Commn Against
Discrimination Oct. 21, 2002); Barbot v. Yellow Cab, 23 MDLR 317 (Mass. Commn
Against Discrimination Nov. 27, 2001).
NOLAN. FINAL 1/7/2008 10:24:23 PM
public accommodation.162 In Cashman v. Zekes, the Commission found a

night club liable for removing a patron based on his sexual orientation.163
The club was liable for the complainants damages from a fight that ensued
as a result of the clubs failure to accommodate him.164 Similarly, in Barbot
v. Yellow Cab,165 the Commission found a cab company liable for the
harassing remarks of its driver to a homosexual patron.166 Here, the driver
of the cab responded to the customers request for change with intimidating
and threatening insults and behaviorthe company was liable for damages
based on emotional distress and ordered to conduct annual training sessions
for its employees on the non-discriminatory treatment of customers.167
In addition, the Commission protects individuals from discrimination
in housing under chapter 151B, the Massachusetts anti-discrimination
law.168 In Maher v. Boston Housing Authority, the Commission held the
Boston Housing Authority responsible for failing to adequately respond to
a resident who had been repeatedly subjected to harassment and threats
based on his sexual orientation in a state-funded housing complex.169 The
Commission found that chapter 151B was violated in this circumstance
because the Housing Authority knew of the hostile environment in which
the complainant was living and failed to facilitate his transfer to a safer
community that could meet his needs.170
The Commission may also hold landlords liable for discrimination
based on sexual orientation, outside of the public housing context, under
state anti-discrimination law.171 In Curry & Hayes v. Allessio, the
Commission found that two lessees of an apartment had been discriminated
against based on their sexual orientation when their landlord made
persistent harassing and insulting remarks to them, creating a hostile living
162. See Cashman, 24 MDLR 323; Barbot, 23 MDLR 317.

163. Cashman, 24 MDLR at 323-24.
164. Id.
165. Barbot, 23 MDLR at 317.
166. Id. at 317-18.
167. Id.
168. MASS. GEN. LAWS ch. 151B, 4(7) (2004). Housing discrimination is typically a
matter of public accommodation law. See ch. 272, 92A, 98, 98A. In Massachusetts,
however, the legislature has specifically provided for a cause of action for discrimination
based on sexual orientation in the area of public housing accommodations. See ch. 151B,
4(7).
169. 24 MDLR 3, 3-7 (Mass. Commn Against Discrimination Jan. 9, 2002).
170. Id. at 6-7. The Commission held the Housing Authority liable under its own policies
when it failed to follow them to facilitate the complainants transfer. Id.
171. MASS. GEN. LAWS ch. 151B, 4(6) (2004). In Massachusetts, the legislature has
provided for a cause of action for discrimination based on sexual orientation that applies to
nearly all housing transactions and relationships. Id.
NOLAN. FINAL 1/7/2008 10:24:23 PM
environment.172 The landlord also refused to furnish adequate services and

facilities to them because of their sexual orientation, for which he was
found liable for compensatory and emotional distress damages to both
complainants and a civil penalty to the state.173
The MCADs enforcement of the states law prohibiting
discrimination on the basis of sexual orientation indicates that it is willing
to enforce and liberally interpret its mandate to protect Massachusetts
citizens.174
B. Protection from Discrimination Extended to Transgendered

Individuals
The Commission has been active in forging new ground to protect
citizens from discrimination. In 2001, the Commission extended the states
anti-discrimination provision to protect transgendered individuals on the
basis of sex.175 In Millet v. Lutco, Inc., the Commission protected a
transgendered individual from harassment in the workplace, determining
that such behavior constitutes discrimination on the basis of sex.176 The
Commission construed the legislative intent of chapter 151B to encompass
such protection, finding:
It is incomprehensible to us that our Legislature would ban
discrimination against heterosexual men and women; against
homosexual men and women; against bisexual men and women;
against men and women who are perceived, presumed or
identified by others as not conforming to the stereotypical
notions of how men and women behave, but would condone
discrimination against men or women who seek to change their
anatomical sex because they suffer from a gender identity
disorder.177
172. Curry & Hayes v. Allessio, 21 MDLR 247, 249 (Mass. Commn Against
Discrimination Dec. 20, 1999).
173. Id. at 249-50.
174. See, e.g., McGrath v. United Steelworkers of America, 26 MDLR 178, 202 (Mass.
Commn Against Discrimination July 28, 2004).
175. See Millet v. Lutco, Inc., 23 MDLR 231, 232 (Mass. Commn Against
Discrimination Oct. 10, 2001).
176. Id. The Commission followed the framework of cases such as Price Waterhouse v.
Hopkins, finding that sex discrimination encompasses more than the anatomical notion of
sex because it incorporates elements of gender and societal expectation. Id. (citing Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989)).
177. Id. at 233. Gender Identity Disorder in Adolescents or Adults is defined as a
strong and persistent cross-gender identification that is manifested by symptoms such as a
stated desire to be the other sex, frequent passing as the other sex, desire to live or be treated
NOLAN. FINAL 1/7/2008 10:24:23 PM
The Commission noted that such a finding was contrary to most

federal and state court holdings, but that the legislature has directed that
chapter 151B be construed liberally and should encompass transgendered
individuals in its protections.178 Accordingly, it held that penalizing a
person who identifies as transgender is illegal sex discrimination.179
In Lie v. Sky Publishing Corp., the Massachusetts Superior Court
upheld the MCADs reasoning in a decision which reiterated that the issues
facing transgendered individuals are best understood as issues of gender
identity and are unrelated to sexual orientation.180 In this way, the court and
the Commission implicitly found that discrimination on the basis of sex is
the most appropriate theory under which transgendered individuals may be
protected in the workplace.181 In fact, such a theory was applied in this case
against an employer who terminated a male because he dressed as a female
in violation of the companys dress code policy.182
At the same time, however, the Massachusetts Superior Court opened
the door in this case for a claim by a transgendered individual of
discrimination on the basis of sexual orientation, stating that [t]he
conflation of ones appearance with ones sexual orientation . . . may lead
to discrimination actionable under . . . 151Bs definition of sexual
orientation discrimination.183 While this argument has not subsequently
advanced as a claim,184 this is another example of how the MCADs
reasoning may create a protection from existing state law for individuals
discriminated against based on their sexual orientation.185
Further, the MCAD determined that individuals who are
transgendered may also be qualified handicapped persons under chapter
as the other sex, or the conviction that he or she has the typical feelings and reactions of the
other sex. TASK FORCE ON DSM-IV, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 537-38 (American Psychiatric Assn 4th ed. 1994) (appearing as diagnostic code
302.85).
178. Millet, 23 MDLR at 233.
179. Id.
180. 15 Mass. L. Rptr. 412, 416 (Mass. Super. Ct. 2002).
181. Id. at 415.
182. Id. at 412-13.
183. Id. at 416. The court cited, for example, a case where a bank teller refused to give a
loan application to a transgendered applicant because the teller thought the applicant was
gay, thereby confusing cross-dressing with sexual orientation. Id. (citing Rosa v. Park W.
Bank & Trust, 214 F.3d 213, 214 (1st Cir. 2000)).
184. Neil Dishman, The Expanding Rights of Transsexuals in the Workplace, 21 LAB.
LAW. 121, 138 (2005) ([T]here are no reported cases of transsexual plaintiffs successfully
using this theory.).
185. See Lie, 15 Mass. L. Rptr. at 416.
NOLAN. FINAL 1/7/2008 10:24:23 PM
151B and entitled to protection on that basis.186 In Jette v. Honey Farms

Mini Market, the Commission found that a biologically male store clerk
who identified as transsexual was entitled to handicap protection because
her employer failed to accommodate her needs to dress in womens
clothing and to identify as a woman.187 The Commission found that the
Massachusetts legislature must have intended to include gender identity
disorder188 as a handicap because the legislature did not explicitly exclude
such coverage under the definition of handicap in chapter 151B.189
Accordingly, the Commission determined that gender identity disorder can
constitute a handicap under which individuals may be protected from
discrimination.190
These three theories, under which transgendered individuals may find
protection, exist because the MCAD construes the states anti-
discrimination law liberally191 and is willing to (and should) extend its
provisions where it recognizes a population in need of protection from
discrimination.192
C. Reviewing Courts Presume that MCAD Decisions Are Valid.

The MCAD is an excellent forum for seeking protection under state
anti-discrimination law because their decisions regarding these laws are
likely to be upheld.193 In general, a Massachusetts court will uphold the
decision of a state administrative agency where such a decision is based on
substantial evidence and the agency has not made unreasonable inferences
from the evidence in the record.194 This has proven true for decisions of the
186. See Jette v. Honey Farms Mini Market, 23 MDLR 229, 230 (Mass. Commn Against
Discrimination Oct. 10, 2001).
187. Id. at 229-30.
188. The Jette court refers to Gender Dysphoria and transsexualism, which are
simply alternate terms for Gender Identity Disorder as understood in the DSM-IV.
Enriquez v. W. Jersey Health Sys., 777 A.2d 365, 368 (N.J. Super. Ct. App. Div. 2001);
Jette, 23 MDLR at 229-30; see supra note 177 (defining Gender Identity Disorder). In this
section, the term Gender Identity Disorder is used instead of Gender Dysphoria for
clarity.
189. Jette, 23 MDLR at 229-30; see MASS. GEN. LAWS ch. 151B, 1(17)(a) (2004).
190. Jette, 23 MDLR at 230.
191. 151B, 9 provides, [t]his chapter shall be construed liberally for the
accomplishment of its purposes. MASS. GEN. LAWS ch. 151B, 9 (2004).
192. See, e.g., McGrath v. United Steelworkers of America, 26 MDLR 178, 193 (Mass.
Commn Against Discrimination 2004).
193. See MASS. GEN. LAWS ch. 30A, 14 (2004) (discussing deferential judicial review);
see also St. Elizabeths Hosp. v. Labor Relations Commn, 321 N.E.2d 837, 838 (Mass.
1975) (describing the deference given to an MCAD decision).
194. St. Elizabeths Hosp., 321 N.E.2d at 838.
NOLAN. FINAL 1/7/2008 10:24:23 PM
MCAD, as the SJC will uphold the Commissions decision if it rests on

substantial evidence and its factual basis is made clear on the record.195
Further, the SJC will only overturn the Commissions findings of fact if it
determines that, as a matter of law, the [C]ommissions reliance on
evidence was unreasonable.196
Even the Commissions judgment regarding credibility of witnesses
and the scope of damages will be upheld absent clear error.197 In
Intercultural Center for Research and Education, Inc. v. MCAD, the
Massachusetts Court of Appeals held that credibility judgments found as
matters of fact by the MCAD are accorded great deference by the
reviewing court.198 The MCAD is even accorded deference in determining
damages, as in School Committee of Norton v. MCAD, where the Appeals
Court of Massachusetts upheld an MCAD award of back pay, lost pension,
and attorneys fees because the MCAD acted within its discretion.199
Specifically, the SJC recently held that the MCAD is entitled to
deference on its interpretations of state anti-discrimination law.200 In
Trustees of Health and Hospitals of the City of Boston, Inc. v. MCAD, the
Appeals Court of Massachusetts reviewed an MCAD decision regarding
discrimination on the basis of sex.201 Even though the court reviewed the
decision de novo, it accorded weight to the factual findings and reasoning
of the MCAD and eventually reached the same conclusion as the
Commission regarding the elements of proving a claim under chapter
151B.202
Thus, it is clear that the MCAD is in an excellent position to broaden
the reach of Massachusetts anti-discrimination law. The Commission has
195. Stonehill College v. MCAD, 808 N.E.2d 205, 225 (Mass. 2004). [The
Massachusetts Supreme Judicial Court] will affirm a decision and order of the MCAD
unless the findings and conclusions are unsupported by substantial evidence or based on an
error of law. City of Salem v. MCAD, 693 N.E.2d 1026, 1037 (Mass. App. Ct. 1998).
196. School Comm. of Brockton v. MCAD, 666 N.E.2d 468, 474 (Mass. 1996).
197. See Intercultural Ctr. for Research and Educ., Inc. v. MCAD, No. 05-P-886, 2006
WL 1098151, at *1 (Mass. App. Ct. April 26, 2006) (finding that the MCAD had not erred
as a matter of law because its decision was supported by substantial evidence in the
administrative record).
198. Id.
199. 830 N.E.2d 1090, 1099-103 (Mass. App. Ct. 2005).
200. Trs. of Health and Hosps. of the City of Boston, Inc. v. MCAD, 839 N.E.2d 861,
865 (Mass. App. Ct. 2006) ([The Court] grant[s] deference to the interpretations
administrative agencies make of the statutory scheme that they administer. (citing Somerset
Imps., Ltd. v. Alcoholic Beverages Control Commn, 551 N.E.2d 545, 548 (Mass. App. Ct.
1990))).
201. Id.
202. See id. at 867.
NOLAN. FINAL 1/7/2008 10:24:23 PM
demonstrated willingness and ability to protect its residents under state law
where such individuals are otherwise without a remedy under federal
law.203 In addition, the Commission has boldly carved new protections out
of existing language where it faces claims from a population at risk.204
Through these efforts, Massachusetts courts have supported the MCAD
where the Commissions decisions are sufficiently supported by facts and
based on reasonable inferences.205 As such, the MCAD should endeavor to
apply state anti-discrimination law in the context of employee benefits,
where claims before the Commission can pass the traditional ERISA
preemption tests.206
IV. ERISAS PREEMPTION CLAUSE AND JUDICIAL APPLICATION: THE

RELATES TO PROVISION AND ITS REFERENCE AND CONNECTION
TESTS
The MCADs ability to effectuate change in Massachusetts based on
chapter 151B requires an analysis of ERISAs preemption provisions. As
established in Part I of this Note, employee benefit plans purchased by
employers are subject to state insurance laws.207 The employee benefit
plans that remain subject to ERISA preemption are self-funded.208
Massachusetts anti-discrimination law claims which arise under these self-
funded employee benefit plans can escape ERISA preemption, allowing the
MCAD to take jurisdiction.
ERISAs preemption provisions have evolved over several years of
litigation into discrete tests.209 The relates to provision is stated in
ERISA,210 and has been interpreted to require determinations as to whether
the state law at issue has a reference to, or a connection with an
ERISA-governed plan.211

204. See supra Part III.B. In particular, transgendered individuals have benefited from the
Commissions interpretation of the statute. See, e.g., Millett v. Lutco, Inc., 23 MDLR 231
(Mass. Commn Against Discrimination 2001); Lie v. Sky Publg Corp., 15 Mass. L. Rptr.
412, 416 (Mass. Super. Ct. 2002); Jette v. Honey Farms Mini Market, 23 MDLR 229 (Mass.
Commn Against Discrimination 2001).
205. See City of Salem v. MCAD, 693 N.E.2d 1026, 1037 (Mass. App. Ct. 1998).
207. See supra Part I.B (describing how the savings clause allows state insurance law
to control employee benefit plans purchased by employers).
208. See infra Part I.C (describing how the deemer clause causes self-funded employee
benefit plans to fall outside the scope of state insurance law and potentially within ERISAs
preemptive scope).
209. See infra Part IV.A.
210. 29 U.S.C. 1144(a) (2000); see infra Part IV.A.
211. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983); see infra Parts IV.B, IV.C.
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A. ERISAs Relates to Provision

As previously discussed,212 ERISAs preemption clause provides that
the provisions of [ERISA] . . . shall supersede any and all State laws
insofar as they may now or hereafter relate to any employee benefit
plan . . . .213 This relate to language was scrutinized in Shaw v. Delta Air
Lines, Inc.214 In Shaw, the Supreme Court considered whether New York
state laws that prevented discrimination on the basis of pregnancy and
mandated that certain benefits be paid to pregnant individuals were
preempted by ERISA.215 These laws provided for disability benefits
because of pregnancy in employee benefit plans where federal law, at the
time, did not make such provisions.216
In its analysis, the Supreme Court focused on the language of both
state laws and their relation to employee benefit plans.217 The New York
Human Rights Law prohibited employers from structuring employee
benefit plans such that they discriminated on the basis of pregnancy.218 The
New York Disability Benefits Law required employers to pay certain
benefits to employees disabled because of pregnancy.219 The Court stated
that a law relates to an employee benefit plan . . . if it has a connection
with or reference to such a plan.220
Accordingly, the Court determined that the state laws at issue met
these criteria and were preempted by ERISA.221 The New York plans
clearly related to the administration of employee benefits because they
mandated payments and coverage, which is an area within the scope of
ERISA.222 Further, they mandated benefits, which were not provided under
federal law, creating a direct conflict between state and federal anti-
discrimination provisions,223 and which were at odds with ERISAs
212. See supra Part I.D (discussing ERISAs preemption clause and its impact on state
law).
213. 29 U.S.C. 1144(a) (2000) (emphasis added).
214. Shaw, 463 U.S. at 91, 96-100, 106.
215. See id. at 88-89.
216. Id. at 92-93. At the times material to the claim in this case, the Federal Pregnancy
Discrimination Act had not taken effect. Id. at 93 n.9.
217. Id. at 96-97.
218. Id. at 97.
219. Id.
220. Shaw, 463 U.S. at 96-97 (emphasis added) (citing BLACKS LAW DICTIONARY 1158
(5th ed. 1979)).
221. Id. at 100 (We hold that the Human Rights Law and the Disability Benefits Law
relate to any employee benefit plan within the meaning of . . . [ERISA].).
222. Shaw, 463 U.S. at 96-97.
223. Id. at 105 (Congress might well have believed, had it considered the precise issue
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purpose of eliminating conflicting and inconsistent regulation of employee

benefit plans at the state and federal levels.224
However, the Court acknowledged that some state laws may affect
employee benefit plans in too tenuous, remote, or peripheral a manner to
warrant a finding that the law relates to the plan.225 The Court cited an
example of a state law requiring garnishment of income to enforce alimony
and support ordersthis presented too tenuous a link to employee benefit
plans to warrant preemption.226
Presumably, a state law which does not explicitly state its impact on
employee benefit plans will require further scrutiny under the Shaw test.227
The two prongs of the test articulated in Shawwhether a law evinces a
connection with or reference to an employee benefit plan228has
subsequently been litigated and better defined, as described below.
B. The Reference Test

The first consideration under the relates to provision, as articulated
by the Supreme Court in Shaw, is the reference test.229 The Supreme
Court originally interpreted this test broadly,230 finding that a state law may
refer to a benefit plan even if it is not designed to affect, or has only an
indirect effect on, such a plan.231 Specifically, the Court has determined
that a law refers to an ERISA plan if it acts immediately and exclusively
upon ERISA plans . . . or [if] the existence of ERISA plans is essential to
the laws operation.232
The First Circuit has characterized the Supreme Courts approach to
the reference test as conservative, stating that a reference [to ERISA
before [the Court], that ERISA plans should be subject only to the nondiscrimination
provisions of Title VII, and not also to state laws prohibiting other forms of
discrimination.).
224. Id.
225. Id. at 100 n.21.
226. Id. (citing Am. Tel. & Tel. Co. v. Merry, 592 F.2d 118, 121 (2d Cir. 1979)).
227. See id. at 96-97.
228. See Shaw, 463 U.S. at 96-97.
229. Id.
230. Cal. Div. of Labor Stds. Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S.
316, 324 (1997).
231. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139 (1990). In this case, the Court
found that a Texas statutory cause of action made specific reference to, and was premised
on, the existence of a pension plan. Id. at 140.
232. Air Trans. Assn of Am. v. City and County of San Francisco, 992 F. Supp. 1149,
1168 (N.D.Cal. 1998) (alteration in original) (quoting Cal. Div. of Labor Stds. Enforcement
v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 325 (1997)).
NOLAN. FINAL 1/7/2008 10:24:23 PM
plans] must be patent before ERISA preemption looms.233 In Carpenters

Local Union No. 26 v. United States Fidelity & Guaranty Co., the First
Circuit considered a state law that required contractor-employers to secure
funding for employee health plans and found that it was not preempted
under the reference test because, while it touch[ed] upon
enforcement . . . it had no real bearing on . . . the principal players in the
ERISA scenario.234
The analysis offered by the court in Carpenters Local is noteworthy
because it represents a loosening of the interpretation of the reference test
as originally applied in the case of California Division of Labor Standards
Enforcement v. Dillingham Construction, N.A., Inc.235 The First Circuit
acknowledged that the test was evolving and that there is room for courts
to balance . . . precedent against insights gleaned from new developments
in the law.236
This perspective represents the present state of federal appellate
jurisprudence regarding the reference test and offers an opportunity to
persuade a federal appellate court of the validity and independence of state
anti-discrimination law as applied to employee benefits that fall within
ERISAs scope.237 Indeed, the U.S. District Court for the District of
Massachusetts recently considered the reference test as applied to the
issues described in this paper in Partners Healthcare System, Inc. v.
Sullivan.238 There, the plaintiff sued to enjoin the MCAD from
investigating a claim of discrimination in the administration of employee
benefits based on sexual orientation.239 The claimant, Webster, a
heterosexual male, sought benefits under the companys same-sex domestic
partner coverage for his opposite-sex domestic partner.240 He alleged that
he was denied access to benefits under the plan based on his sexual
orientation241 and in violation of Massachusetts General Laws chapter
233. Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 144 (1st Cir.
2000).
234. Id. at 138-39, 141.
235. Id. at 141-45 (discussing the reference test).
236. Id. at 142. In two recent cases, First Circuit courts have reviewed state laws and
determined that ERISA preemption does not apply. See N. Kare Facilities/Kingdom Kare,
L.L.C. v. Benefirst, L.L.C., 344 F. Supp. 2d 283, 286-89 (D. Mass. 2004) (examining
Massachusetts state laws regarding unfair trade practice); Pharm. Care Mgmt. Assn v.
Rowe, 429 F.3d 294, 301-05 (1st Cir. 2005) (examining Maine state laws regarding unfair
prescription drug trade practices).
238. No. 06-11436-JLT, 2007 WL 1810218 (D. Mass. June 25, 2007).
239. Id. at *1.
240. Id.
241. Id.
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151B.242 The plaintiff in the district court action, Partners Healthcare,

alleged that the benefit plan under which Webster sought benefits was an
ERISA-governed plan and, as such, was not subject to Massachusetts anti-
discrimination law.243 The Court found that chapter 151B does not
reference ERISA plans because [it] does not act immediately and
exclusively upon ERISA plans and is not essential to the laws
operation.244 It appears, then, that chapter 151B easily survives the
reference test as applied by federal courts.
Massachusetts state courts have reached similar outcomes when
determining if state laws are preempted by ERISA under the reference
test.245 In Westinghouse Electric Supply Co. v. MCAD, the Massachusetts
Superior Court examined chapter 151Bs protection against discrimination
on the basis of handicap in light of ERISA preemption.246 The court found
that Congress did not intend to preempt all state laws and articulated the
primary consideration as whether the law affects an employee benefit plan
generally or merely affects certain benefits.247 On the facts presented, the
court determined that the claimants cause of action under chapter 151B
was incidental to an employee benefit plan because he did not seek benefits
under a plan or allege the denial of benefits directlythe effect of his claim
on the employee benefit plan was incidental to his discriminatory discharge
from employment.248
While these facts are distinguished from a claimant who does allege
the denial of benefits under a plan,249 the courts reasoning is crucial to
such an inquiry. The court specifically found that chapter 151B was a
statute of general applicability [and that] claims based on this statute do
not depend on the existence of an ERISA plan [or] bear more than an
indirect economic influence upon a plan.250 This precedent leaves ample
room for a claimant to put forth an argument that denial of benefits based
on sexual orientation should follow the same reasoning; the challenge is to
convince the court that such a claim does not depend on the existence of an
242. MASS. GEN. LAWS ch. 151B, 4 (2006).

243. Partners, 2007 WL 1810218, at *1.
244. Id. at *3 (quoting Cal. Div. of Labor Stds. Enforcement v. Dillingham Constr., N.A.,
Inc., 519 U.S. 316, 325 (1997)) (citation omitted).
245. See, e.g., Felix A. Marino Co. v. Commr of Labor & Indus., 689 N.E.2d 495 (Mass.
1998). Here, the Court found that Massachusetts prevailing wage law was not preempted
by ERISA because its reference to employee benefit plans was incidental and was the sort of
law intended to be outside of ERISAs scope. Id. at 497-98.
247. Id. at 664.
248. Id.
250. Westinghouse Elec., 9 Mass. L. Rptr. at 664.
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ERISA-governed plan.251
C. The Connection Test

The second prong under the relates to provision is the connection
test.252 The connection test is an amorphous standard that considers the
objectives of ERISA as they relate to both the scope of state law that
Congress understood would withstand preemption and the effect of the
state law on ERISA-governed plans.253 In applying this analysis, the
Supreme Court has maintained an assumption that the police powers
traditionally relegated to the states are not superseded by a federal act
unless such supersedure was the clear and manifest purpose of
Congress.254
In California Division of Labor Standards Enforcement v. Dillingham
Construction, N.A., Inc.,255 the Supreme Court did not find a California
prevailing wage law256 to be preempted by ERISA.257 The law required
contractors on a public works project to pay prevailing wage rates, but
allowed an exception for workers in an apprenticeship program to be paid
less.258 A federal prevailing wage law did not provide for a similar
exception.259 The plaintiffs argued that the apprentice program was an
ERISA-governed employee benefit plan and that the federal prevailing
wage law thus superseded the California prevailing wage law, requiring
that workers in the apprenticeship program be compensated accordingly.260
The Court disagreed and held that the law fell in an area of traditional state
regulation, with too tenuous a relation to the ERISA-governed plan to fall
within ERISAs preemptive scope.261
In New York State Conference of Blue Cross & Blue Shield Plans v.
Travelers Insurance Co., the Court considered facts presenting a different

252. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983).
316, 325 (1997).
254. Id. (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
255. 519 U.S. 316 (1997).
256. See CAL. LAB. CODE 1777.5 (West 1989 & Supp. 1997). California contractors
may only pay apprentice wages to apprentices in approved programs. Dillingham Constr.,
519 U.S. at 320.
257. Dillingham Constr., 519 U.S. at 334.
258. Id. at 319.
259. See 29 U.S.C. 50 (2000).
260. Dillingham Constr., 519 U.S. at 322.
261. Id. at 334.
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relationship to ERISA plans.262 The case involved a New York law that
imposed a surcharge and higher rates on patients covered by a commercial
insurerit did not impose the same burdens on patients of Blue Cross/Blue
Shield.263 The commercial insurers sued, claiming that the state law was
preempted by ERISAs administrative scheme and, as such, was
impermissible.264 The Court stated that cost uniformity is not an object of
preemption and that state laws having an indirect economic effect on the
cost of insurance do not fall within the scope of ERISA preemption, as
envisioned by Congress.265 Thus, state laws that marginally increase costs
to employee benefit plans do not establish a connection between the plan
and the law sufficient to trigger ERISA preemption.266
In both Dillingham Construction and Travelers, the Court examined
the scope of the state law and determined that it was not within those laws
Congress intended to preempt.267 Further, both analyses examined the
impact of the state law on the respective ERISA-governed benefit plan and
determined that the connection was too remote to trigger preemption.268
Both Courts reiterated that ERISA was designed to govern the management
of funds through reporting, disclosure, and fiduciary duty requirements.269
It follows that state laws that do not impact or compromise the operation of
these primary objectives are presumed to have a peripheral relationship to
ERISA-governed plans.
At the district court level, the connection test has proved more
difficult to apply. In Partners Healthcare Systems, Inc. v. Sullivan,270 the
U.S. District Court for the District of Massachusetts determined that
chapter 151B has a connection with ERISA-governed employee benefit
plans because it would, in effect, specify who the plan must name as
beneficiaries of the plan . . . benefits.271 In so doing, chapter 151B would
govern the payment of benefits and, as such, it would evince a connection
262. See 514 U.S. 645, 649 (1995).

263. Travelers, 514 U.S. at 649-50.
264. Id. at 651-52.
265. Id. at 662.
266. See id. It follows that the marginal cost increase the employer faces in offering
benefits to the married spouses of same-sex partners is not enough to trigger ERISA
preemption. See infra notes 363-64 and accompanying text.
316, 317, 330-31 (1997); Travelers, 514 U.S. at 646.
268. Dillingham Constr., 519 U.S. at 334; Travelers, 514 U.S. at 654.
269. Dillingham Constr., 519 U.S. at 326-27; Travelers, 514 U.S. at 650-51.
270. No. 06-11436-JLT, 2007 WL 1810218 (D. Mass. June 25, 2007); see also supra text
accompanying notes 238-44 (discussing Partners case).
271. Partners, 2007 WL 1810218 at *4 (emphasis added).
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with an ERISA plan.272 It is with this reasoning that the District Court
misses the mark and employs an expansive construction of the connection
test that is inconsistent with the narrowing trend among federal appellate
courts.273 As Gay and Lesbian Advocates and Defenders (GLAD) argues
in its amicus curiae brief, the Supreme Court in Shaw found that state
statutes which directly mandated specific benefits or imposed a calculation
of benefits on plan administrators were preempted.274 But chapter 151B is a
law of general applicabilityit does not impose any obligation on ERISA-
governed plans directly;275 it does so only in effect.276 This distinction is
critical and provides ripe ground for appeal in federal court, where the
connection test should be interpreted narrowly such that chapter 151B is
not preempted. Such a holding would be consistent with the federal
appellate interpretation of the connection test described above.
Massachusetts state courts have followed the federal model in
determining whether a state law claim has a connection with an employee
benefit plan. In Slavin v. Xenon Corp., the Massachusetts Superior Court
found that a plaintiffs claim under a state common law breach of contract
did not fall within ERISAs preemptive scope because it affected the
employee benefit plan in too tenuous, remote, or peripheral a manner.277
The court held similarly in Westinghouse Electric Supply Corp. v. MCAD,
finding that the plaintiffs claim had a purely incidental effect upon the
employee benefit plan at issue.278 Indeed, the court specifically noted that
[a] state discrimination claim does not automatically relate to
ERISA.279
The Massachusetts jurisprudence under the connection test is not as
developed as its federal counterpart.280 However, the courts that have
considered the issue primarily defer to the federal language as guidance
272. See id. at *9.

273. See Brief of Amicus Curiae Gay & Lesbian Advocates & Defenders in Support of
Defendants Motion to Dismiss at 8-9, Partners, 2007 WL 1810218 (D. Mass. 2007) (No.
06-11436-JLT).
274. Id. at 9.
275. Id. at 10.
276. See supra text accompanying note 271.
278. Westinghouse Elec. Supply Co. v. MCAD, 9 Mass. L. Rptr. 661, 664 (Mass. Super.
Ct. 1999).
279. Id.
280. Massachusetts courts have had fewer opportunities than their federal counterparts to
develop connection test jurisprudence. Compare Westinghouse Elec., 9 Mass. L. Rptr.
661, and Slavin, 3 Mass. L. Rptr. No 11, 227 (examples of limited Massachusetts cases that
have dealt with the connection test), with supra notes 255-69 and accompanying text
(examples of multiple federal cases that have developed connection test jurisprudence).
NOLAN. FINAL 1/7/2008 10:24:23 PM
throughout their analysis.281
V. A CASE-BASED ARGUMENT THAT MASSACHUSETTS ANTI-

DISCRIMINATION LAW SHOULD SURVIVE ERISAS PREEMPTION CLAUSE
Marriage between same-sex partners is permitted in Massachusetts282
and discrimination based on sexual orientation in the employment context
is expressly proscribed in the state.283 With these precedents in mind, this
Part will examine how a claim of discrimination in the administration of
employee benefits, which arises under Massachusetts state anti-
discrimination law, will fare under ERISA preemption. Such a claim
should escape ERISA preemption.
Recall the example claimant discussed in Part I: an employee in a
same-sex marriage seeks to add his or her spouse to an employee benefit
plan (namely, a vision plan).284 The employee benefit plan is self-funded by
the employer and is administered by an organization that administers plans
for only Massachusetts employers. This claimant comes before the MCAD,
alleging that the employers refusal to add his or her spouse to the
employee benefit plan contradicts Massachusetts anti-discrimination law,285
which prohibits discrimination on the basis of sexual orientation.286
The MCAD should exhaust appellate options to secure the right to
investigate these claims and adjudicate in favor of the claimant, thereby
forcing the employer to comply with state anti-discrimination law because
the relevant considerations weigh in favor of chapter 151B, surviving
ERISA preemption.
A. The MCAD Should Advance the Claim that Chapter 151B Protects
Married Persons from Discrimination Based on Their Sexual
Orientation.
The claim aforementioned example is ripe for MCAD adjudication.
Because the MCAD is the first body through which a claim under state
anti-discrimination law must proceed, the claimant must bring his suit to
the MCAD.287 A Massachusetts court will not hear such claims before they
281. See, e.g., Westinghouse Elec., 9 Mass. L. Rptr. at 664; Slavin, 3 Mass. L. Rptr. at
228.
282. See supra note 8 and accompanying text.
283. See MASS. GEN. LAWS ch. 151B, 4(1) (2004).
286. Ch. 151B, 4(1).
287. Smith v. Bell Atl., 829 N.E.2d 228, 245 (Mass. App. Ct. 2005) ([Chapter] 151B . . .
require[s] a claimant to file a charge with the MCAD before filing a lawsuit.).
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have gone through the adjudicatory process assigned to the MCAD.288

The MCAD is charged with interpreting and enforcing Massachusetts
anti-discrimination law.289 The Commission has acted as the catalyst for the
growth of chapter 151Bs scope, particularly as to the law related to
discrimination based on sexual orientation.290 As detailed in Part III, the
MCAD has extended anti-discrimination protection in employment based
on sexual orientation to same-sex sexual harassment,291 discharge based on
sexual orientation,292 and retaliation for bringing a claim based on sexual
orientation to the Commission.293 Further, the MCAD has carved out
protection under various laws to protect transgendered individuals.294 These
developments were all forged in the spirit of liberal application of
Massachusetts anti-discrimination law.295
Considering this history, the MCAD should embrace the opportunity
to apply chapter 151B in new ways as the states perspective on the rights
bestowed under same-sex marriage evolves. The example claim presented
above reflects several actual claims presently before the Commission.296
Even though the investigation of one of these claims was recently enjoined
by the U.S. District Court for the District of Massachusetts,297 the MCAD
should appeal this decision because the issues presented by these claims are
novel and should be investigated by this state agency. The MCAD should
embrace its history of administering chapter 151B liberally298 and fight for
the opportunity to consider the issue of discrimination in the administration
of employee benefit plans under state anti-discrimination law.
Further, the MCAD has consistently produced reasoning that
withstands judicial scrutiny and is trusted to develop well-reasoned
288. See Stonehill Coll. v. MCAD, 808 N.E.2d 205, 217 (Mass. 2004).
289. MASS. GEN. LAWS ch. 151B, 3 (2004); see supra notes 19-21 and accompanying
text.
290. See supra Part III.
291. See, e.g., Rieves v. G. & J. Maint. Co., 24 MDLR 136, 137 (Mass. Commn Against
Discrimination 2002).
292. See, e.g., DAgostino v. Salvation Army, 25 MDLR 176, 178 (Mass. Commn
Against Discrimination 2003).
293. See, e.g., Morgan v. Boston Market, 24 MDLR 45, 45-47 (Mass. Commn Against
Discrimination 2002).
294. See supra Part III.B.
295. See MASS. GEN. LAWS ch. 151B, 9 (2004) ([t]his chapter shall be construed
liberally for the accomplishment of its purposes); see, e.g., McGrath v. United Steel
Workers, 26 MDLR 178, 193 (Mass. Commn Against Discrimination 2004).
297. See supra note 22.
NOLAN. FINAL 1/7/2008 10:24:23 PM
analyses of the discrete issues before it.299 It has ample support for a
conclusion that chapter 151B protects all married spouses from
discrimination in the administration of employee benefit plans300 and
should strenuously advocate for this result.
B. The Defense of Marriage Act Should Not Mandate the Extension

of the Federal Definition of Marriage to ERISA-Governed
Employee Benefit Plans.
As discussed in Part II.A,301 DOMA defines marriage as between only
opposite sex couples; only a person of the opposite sex is considered a
spouse.302 On its face, this law appears to bar same-sex couples from the
benefits of marriage granted under federal law.303 But, for purposes of
ERISA-governed employee benefits, this is not a necessary conclusion.304
No court has squarely addressed the issue of how DOMA impacts the
definition of marriage or spouse under ERISA.305 The result could diverge
depending on whether the court adopts a broad or narrow perspective on
the impact of DOMA.306
A broad view of DOMA would superimpose the federal definition of
marriage on an ERISA-governed plan because ERISA is a federal
statute.307 A direct application of DOMA to an ERISA-governed benefit
plan is not supportable because ERISA does not define beneficiary using
the terms spouse or marriage.308 As such, an interpretation of the plan
299. See supra Part III.C.

300. See supra Part III.A (describing protection based on sexual orientation).
302. See Defense of Marriage Act, 1 U.S.C. 7 (2000) ([M]arriage means only a legal
union between one man and one woman as husband and wife, and the word spouse refers
only to a person of the opposite sex who is a husband or a wife.).
303. See Jill Louise Ripke, Employee ERISA Benefits After Goodridge v. Public Health:
Do Same-Sex Marriages Qualify as Legal Marriages Under Employer-Created ERISA
Plans?, 31 J. CORP. L. 267, 274 (2005).
304. See id. at 277.
305. Id.
306. Id.
307. David Glaser et al., Impact of Same-Sex Marriages in Massachusetts on Employee
Benefits Law: What Employers Need to Know at 3-4 (June 23, 2004),
http://www.martindale.com (go to Legal Topics, then to Advanced Search and search
Glaser).
308. ERISA defines a beneficiary as, a person designated by a participant, or by the
terms of an employee benefit plan, who is or may become entitled to a benefit thereunder.
29 U.S.C. 1002(8) (2000). There are specific requirements under ERISA, however, which
rely on the term spouse, such as Joint and Survivor Annuity provisions and Qualified
Domestic Relations Order exceptions to ERISAs anti-alienation rule, which mandate the
NOLAN. FINAL 1/7/2008 10:24:23 PM
does not require reference to the definition of spouse or marriage in

federal law.309 Rather, the imposition of the federal definitions of
marriage and spouse would require the court to view an ERISA-
governed employee benefit plan as an Act of Congress310 and then look to
the plan documents for a reference to marriage or spouse.311 If the plan
documents did include such a reference, the court could apply the federal
definition of the relationship and prevent same-sex couples from being
awarded benefits.312
Conversely, a narrow application of DOMA313 is a more supportable
argument.314 Under a narrow reading, a court should only defer to the
federal definitions of spouse and marriage when interpreting those
terms when they are explicitly used in a federal statute.315 Because ERISA
does not explicitly use the terms marriage or spouse when defining
beneficiary,316 the federal definitions of those terms have no applicability
to ERISA.317 Instead, ERISA points to individual benefit plan documents
for a definition of the term spouse.318 As such, state law should define
this term.319
In fact, courts have looked to state law to determine whether a person
is a spouse under ERISA.320 While no court has considered the issue as
provision of benefits to a spouse in an employee retirement benefit plan. See 29 U.S.C.

1055(a)(2) (2000) (requiring provision of a qualified pre-retirement survivor annuity to the
surviving spouse of a plan participant); 29 U.S.C. 1056(d)(3) (2000) (allowing the
assignment of proceeds from retirement benefit plan to a spouse, among others, under a
qualified domestic relations order).
309. See Ripke, supra note 303, at 272.
310. Id. at 277; see 1 U.S.C. 7 (2000) (In determining the meaning of any Act of
Congress . . . marriage means only a legal union between one man and one woman . . .
[and] spouse refers only to a person of the opposite sex who is a husband or a wife.).
311. Ripke, supra note 303, at 277-78.
312. Id. This reasoning represents the broadest interpretation of DOMA and would allow
any employer, in Massachusetts or elsewhere, to deny benefits under an ERISA-governed
employee benefit plan to same-sex married couples. Id. at 278.
313. Id. at 278.
314. Glaser, supra note 307, at 4.
315. Id.
316. 29 U.S.C. 1002(8) (2000).
317. Glaser, supra note 307, at 4 (Because the interpretation of the terms of the plan
does not require reference to any definition of a spouse or marriage found in federal law,
DOMA would have no impact.).
318. See 29 U.S.C. 1002(8) (2000).
319. See Glaser, supra note 307, at 2-6.
320. See Blessing v. Deere & Co., 985 F. Supp. 886, 894-97 (S.D. Iowa 1997) (relying on
state law to determine if claimant was the common-law spouse of decedent for purposes of
an ERISA-governed pension plan); Rovira v. AT&T, 817 F. Supp. 1062, 1070 (S.D.N.Y.
NOLAN. FINAL 1/7/2008 10:24:23 PM
applied to same-sex spouses legally married under state law, stare decisis
compels courts to look to state law to interpret benefits bestowed upon a
spouse in an ERISA-governed plan.321 Unless the court equates an
employee benefit plan to an Act of Congress and applies the federal
definition of spouse broadly,322 DOMA will not mandate the exclusion of
same-sex partners, legally defined as spouses under state law, as
beneficiaries under ERISA-governed plans.323
Accordingly, the MCAD should not ascribe significant import to
DOMA when examining claimants situated similarly to those in the instant
example. Assuming the benefit plan at issue provides for beneficiary status
using the terms spouse or marriage, the MCAD should look to state
law for a definition of those terms when considering whether a same-sex
spouse, legally married to a covered employee under state law, may qualify
for benefits as a beneficiary under the plan.324
C. The Doctrine of Complete Preemption Should Not Mandate

Federal Removal.
The doctrine of complete preemption arises as a defense to complaints
filed in state court or with state administrative agencies.325 It provides that a
claim arising in an area of law that is necessarily federal in character is
removable to federal court.326 Complete preemption should not be confused
with conflict preemption: complete preemption concerns only removal to
federal court, whereas conflict preemption (the focus of this Note) concerns
the viability of state law claims arising under ERISA-governed employee
benefit plans.327 Even if a claim is removed to federal court under the
doctrine of complete preemption, the conflict preemption tests decide
whether the state law claim is viable.
Under ERISA, Congress intended to allow claims to proceed in
1993) (relying on state criteria to determine whether the claimant was participants spouse
for purposes of receiving death benefits under an ERISA-governed plan); Iron Workers
Mid-South Pension Fund v. Stoll, 771 F. Supp. 781, 783-84 (E.D. La. 1991) (relying on
state law to determine if claimant was a decedents common-law wife and entitled to death
benefits under an ERISA-governed pension plan).
322. See Ripke, supra note 303, at 277-78.
323. Glaser, supra note 307, at 5.
324. See supra note 320 and accompanying text. In Massachusetts, same-sex individuals
may be married spouses under state law. See Goodridge v. Dept. of Pub. Health, 798
N.E.2d 941, 969 (Mass. 2003).
325. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987).
326. Id. at 64 (citing Avco Corp. v. Machinists, 390 U.S. 557 (1968)).
327. See Felix v. Lucent Technologies, Inc., 387 F.3d 1146, 1153 (10th Cir. 2004)
(distinguishing complete preemption from conflict preemption).
NOLAN. FINAL 1/7/2008 10:24:23 PM
federal court through the civil enforcement provision, which provides that
an employee benefit plan participant or beneficiary may bring a civil action
to recover benefits due, enforce rights, or clarify a right to benefits under
the terms of the plan.328 A claimant who seeks benefits due under the terms
of an employee benefit plan can bring an action under ERISA and, as such,
their claims may be removed to federal court under the doctrine of
complete preemption.329 The example claimants may proceed before the
MCAD and their claims need not face removal because they do not merely
seek benefits under terms of the employee benefit plan; rather, the example
claimants seek the fair administration of the employee benefit plan and
inclusion in the plan design.330 They do not necessarily seek any particular
benefit due them under the existing plan.
Indeed, plaintiffs must have standing to sue under ERISAs civil
enforcement provision before their claims are subject to removal.331 The
same-sex married spouse of an employee may seek fair enforcement of an
employee benefit plan under Massachusetts state law, but that individual
would not have standing under ERISAs civil enforcement provision
because they are not yet a beneficiary under the plan. Accordingly, it is fair
to characterize the example claimants claims as falling outside the doctrine
of complete preemption.
D. Chapter 151B Should Survive the Application of ERISAs

Relates to Test.
The relates to language of ERISAs preemption clause and its
corresponding jurisprudence was discussed in detail in Part IV.332 A federal
or state court reviewing an MCAD decision finding that same-sex spouses
qualify as ERISA beneficiaries will apply the relates to test to determine
whether this outcome is sustainable under ERISAs preemption
provisions.333 As such, the MCAD must carefully apply these precedents to
the claims before it to generate a defendable decision.
In Shaw v. Delta Airlines, Inc., the Supreme Court stated that a state
law relates to ERISA if it has a connection with or reference to such a
plan.334 The Court explicitly acknowledged that some state laws present
too tenuous, remote, or peripheral a relationship to employee benefit plans
328. See 29 U.S.C. 1132(a)(1) (2000).

329. See Lucent Technologies, 387 F.3d at 1158.
330. Cf. id. (finding that a claim of fraud in the administration of an employee benefit
plan was not a claim for benefits due under ERISAs civil enforcement provision).
331. See id.
332. See supra Part IV; 29 U.S.C. 1144(a) (2000).
333. See supra Part IV; 29 U.S.C. 1144(a) (2000).
334. Shaw v. Delta Airlines, Inc., 463 U.S. 85, 96-97 (1983) (emphasis added).
NOLAN. FINAL 1/7/2008 10:24:23 PM
to justify ERISA preemption.335 Federal and Massachusetts state courts

have further examined the sufficiency of the link between state law and
ERISA.336 It is necessary to apply the resulting jurisprudence to the
example claimant described above337 to determine if such a claim can
survive ERISA preemption.
1. Chapter 151B Should Survive the Reference Test.

Under the reference prong of the relates to test, a state law can
survive ERISAs seemingly sweeping preemption provision.338 In
Carpenters Local Union No. 26 v. United States Fidelity & Guaranty Co.,
the First Circuit stated that ERISA preemption is not inexorable and that
the Supreme Court has grown more guarded over time in applying it.339
Further, the First Circuit determined that a reference in state law to an
ERISA-governed plan should be patent before preemption looms.340 The
court applied this reasoning to a Massachusetts bond statute that made no
direct reference to employee benefit plans and that functioned irrespective
of the existence or non-existence of an ERISA planaccordingly, the
state law was not preempted.341
The Massachusetts anti-discrimination statute342 is similar to the state
law examined in Carpenters Local343 in that the law makes no reference
whatsoever to employee benefit plans and functions entirely independently
of such plans. Indeed, even under the more broad reasoning presented by
the Supreme Court,344 the Massachusetts anti-discrimination law should
survive preemptionthe law has only an indirect effect on employee
benefit plans, the law does not operate independently or exclusively [on
such] plans, and the existence of [such] plans is [not] essential to the
laws operation.345
Decisions from Massachusetts state courts make clear that chapter
151B is a statute that operates independently from employee benefit
335. Id. at 100 n.21.

336. See supra Part IV.
338. See supra Part IV.B; infra notes 339-52 and accompanying text.
339. Carpenters Local Union No. 26 v. U.S. Fidelity & Guaranty Co., 215 F.3d 136, 139
(1st Cir. 2000).
340. Id. at 144.
341. Id.
342. See MASS. GEN. LAWS Ch. 151B (2004).
343. Carpenters Local, 215 F.3d at 144.
344. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139-40 (1990).
345. See Cal. Div. of Labor Stds. Enforcement v. Dillingham Constr., N.A., Inc., 519
U.S. 316, 325 (1997).
NOLAN. FINAL 1/7/2008 10:24:23 PM
plans.346 The Massachusetts Superior Court has viewed chapter 151B as a

statute of general applicability that does not depend on the existence of
employee benefit plans or bear more than an indirect economic influence
on such plans.347 However, the Westinghouse Electric court recognized that
the nature of the cause of action impacts the reference analysis;
specifically, it ascribed import to the fact that the claimant did not directly
seek benefits under the state law claim.348
This focus on the nature of the claim differs from the federal approach
to preemption analysis349 and may prove to be a point of difficulty for the
example claimants if they succeed at the MCAD and find themselves
before the Massachusetts Superior Court. Claimants face less of a challenge
demonstrating the lack of a relation between chapter 151B and ERISA
under federal precedent than under Massachusetts precedent.350 In that
sense, it is important to emphasize that the claim under chapter 151B does
not arise because of the employee benefit plan per se, but rather, because of
the employers decision to define beneficiaries under that plan in a manner
inconsistent with state anti-discrimination law; it is the implementation of
the plan, not the existence of the plan, that gives rise to the claim.351 In this
way, it is perfectly consistent for a court to find that a cause of action under
chapter 151B requires no reference to the ERISA-governed plan and, as
such, should survive preemption under the reference test.352
2. Chapter 151B Should Survive the Connection Test.

Under the connection prong of the relates to test, state law should
escape ERISA preemption.353 Both federal and Massachusetts courts
346. See Westinghouse Elec. Supply Co. v. MCAD, 9 Mass. L. Rptr. 661, 664 (Mass.
Super. Ct. 1999).
347. Id.
348. Id.
349. Compare Westinghouse Elec., 9 Mass. L. Rptr. at 664-65 (describing that the nature
of the state law claim is a primary consideration in determining whether the state law relates
to an ERISA plan), with Carpenters Local, 215 F.3d at 144 (focusing on a patent reference
in state law to an ERISA-governed plan to determine if the law contains a reference to the
plan).
350. Compare supra Part IV.B (explaining federal jurisprudence of the reference test),
with supra notes 245-51 and accompanying text (explaining Massachusetts jurisprudence of
the reference test).
351. See, e.g., Westinghouse Elec., 9 Mass. L. Rptr. at 661 (stating that plaintiffs claim
of discrimination under 151B does not directly affect the administration of the employee
benefit plan and exists independently of the plan (citing Pace v. Signal Tech. Corp., 628
N.E.2d 20, 23 (Mass. 1994))).
352. See id.
353. See supra Part IV.C; infra notes 354-77 and accompanying text.
NOLAN. FINAL 1/7/2008 10:24:23 PM
examining the connection of a state law to an ERISA-governed plan are

primarily concerned with the scope of the law as it relates to ERISAs
objectives and the effect the state law has on the ERISA-governed plan.354
The analysis begins with a presumption that Congress supersedes state laws
only where Congress communicates a clear and manifest intent to do so.355
The Massachusetts anti-discrimination law can and should survive the
connection test. The law does not disrupt the objectives of ERISA, has
merely tangential effects on the administration of ERISA-governed plans,
and is a matter of state concern.356
The Supreme Court described ERISAs primary areas of concern as
reporting, disclosure, and fiduciary duty requirements related to employee
benefit plans.357 Congress intended to create a national administrative
scheme through ERISA for these areas.358 Using Massachusetts chapter
151B to force employers to recognize same-sex marriages as legitimate
does not impact these important administrative areasthe task of enforcing
the state law such that same-sex spouses are recognized as plan
beneficiaries is ministerial and is entirely unrelated to the fiduciary,
reporting, and disclosure duties that plan providers owe to employee
benefit plans.359 Accordingly, the use of chapter 151B in this context
should be determined peripheral to the administration of ERISA-governed
plans.360
The use of chapter 151B also does not affect the ERISA-governed
employee benefit plan in a manner substantial enough to warrant a finding
of connection to the plan.361 The administrator of the vision plan granted to
employees is being asked, under chapter 151B, to extend beneficiary status
to the legally married same-sex spouse of an employee.362 The benefit plan
316, 325 (1997).
355. Id.
356. These three considerations are essential to the Courts analysis in Dillingham
Construction. See id.
357. Id. at 326-27 (quoting Mass. v. Morash, 490 U.S. 107, 115 (1989)).
358. See id. at 325; see also S. SUBCOMM. ON LABOR OF THE COMM. ON LABOR AND
PUBLIC WELFARE, 94TH CONG., supra note 26, at 5-6.
359. See Dillingham Constr., 519 U.S. at 326-27 (quoting Massachusetts v. Morash, 490
U.S. 107, 115 (1989)).
360. Consistent with Shaw, 151B is an example of a state law with too tenuous, remote,
or peripheral a connection to the administration of an employee benefit plan to justify
preemption. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n.21 (1983).
361. An indirect (marginal) impact on the costs of employee benefit plans is not
sufficient to bring the state law within ERISAs preemptive scope. N. Y. State Conference
of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 662 (1995).
362. See supra notes 21-23 and accompanying text; supra notes 284-88.
NOLAN. FINAL 1/7/2008 10:24:23 PM
administrator is not required to act for this employee and their spouse any
differently than they would for another married couple, but simply to
recognize the spouse and designate them as a beneficiary. Recognition of
same-sex spouses may slightly increase the costs of insurance on the
employer;363 but this economic effect is marginal, just as in Travelers.364
However, the Supreme Court described the consideration of a laws
impact on an employee benefit plan as a practical considerationif the
enforcement of the state law would require a benefit administrator to
determine plan eligibility differently in that state than in others, it may
contradict ERISAs goals.365 This test does not present a barrier to the
present example claimant because the example benefit plan administrator
only deals with plans for Massachusetts employers and, as such, is dealing
largely with Massachusetts employees.
Although, even if the vision plan administrator works for employers
in many states, it is not being asked to change who receives benefits as a
spouse when it applies the Massachusetts definition of marriage; it is
merely required to define married spouse under state law and offer benefits
consistent with that definition.366 This is no different from the way in which
plan administrators currently decide who is or is not married for purposes
of plan benefits.367
The situation may be more onerous for a plan administrator operating
in a state which recognizes domestic partnerships, civil unions, or legal
statuses other than marriage.368 In that case, the administrator would be
363. It is estimated that the number of homosexuals in the American workforce may be as
high as 10%, but that only 1.3-2.4% of the workforce self-identifies as such. William B.
Rubenstein, Do Gay Rights Laws Matter?: An Empirical Assessment, 75 S. CAL. L. REV. 65,
83-85 (2001). It follows that the number of openly homosexual workers who are married
under state law and who seek employee benefits for their spouse will fall significantly below
this 1.3-2.4% figure; as such, this population poses a negligible risk of increased cost to
employers. See id.
364. 514 U.S. at 662.
365. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 10 (1987).
366. See supra Part V.A.
367. A plan administrator defers to plan documents for the definition of spouse. See 29
U.S.C. 1002(8) (2000). If the plan documents are required to include all legally married
spouses in this definition, the plan administrator need do nothing more than require a copy
of the marriage certificate to confirm beneficiary status and confer benefits. See supra Part
V.B (discussing unresolved issue of whether DOMA or state law will determine definition
of marriage for purposes of ERISA).
368. For example, in Vermont, same-sex couples may establish a Civil Union, but not a
Marriage. See VT. STAT. ANN. tit. 15, 1201-1207 (Lexis Nexis 2002) (codifying Baker v.
State, 744 A.2d 864 (Vt. 1999)). A plan administrator who extended benefits to spouses of
same-sex employees in relationships with this status would require different information to
qualify these spouses than would be required of an opposite-sex couple married under state
NOLAN. FINAL 1/7/2008 10:24:23 PM
required to use two different definitions of spouse for plan purposes.369

But such is not the case in the present Massachusetts hypothetical, where
the administrator is merely asked to recognize all spouses married under
state law, regardless of their sexual orientation.370 Verification of the
marriage status is identical for same-sex and opposite-sex spouses. There is
no additional burden on the plan administrator.371 As such, the application
of chapter 151B does not require a plan administrator to determine plan
eligibility by coordinating complex administrative activities,372 and the
Courts analysis in Fort Halifax Packing Co. v. Coyne should not apply.373
Furthermore, [t]he right of the State to regulate the institution of
marriage under its police power is unquestioned where it does not infringe
on fundamental rights.374 There is no manifest intent in ERISA to
supersede a states definition of marriage.375 In fact, the statutory
regulations specify that employee benefit plan documents should supply the
definition of spouse,376 which suggests that DOMA should not be
superimposed on ERISA.377 Accordingly, the Massachusetts definition of
marriage should extend to ERISA-governed plans and survive preemption.
In a recent case, the United States District Court for the District of
Massachusetts analyzed ERISAs relates to test.378 The court found a
relation between chapter 151B and the ERISA-governed employee benefit
plan under the connection test.379 However, the courts holding is
inconsistent with appellate analysis of the connection test380 and the
law. This situation does not occur in Massachusetts, where all married couples are given the
same license by the state. See MASS. GEN. LAWS ch. 207, 45 (2004).
369. This eventuality is closer to the inefficiencies in plan administration described in
Fort Halifax because it would require a plan administrator to develop separate processes for
determining a lawful spouse to comply with state regulations. See Fort Halifax, 482 U.S. at
10.
370. See supra Part V.
372. See Fort Halifax, 482 U.S. at 11. The benefit of preemption is that it ensures that
the administrative practices of a benefit plan will be governed by only a single set of
regulations. Id.
373. See id.; supra note 32 and accompanying text.
374. Commonwealth v. Stowell, 449 N.E.2d 357, 360 (Mass. 1983) (citing Zablocki v.
Redhail, 434 U.S. 374, 396 (1978) (Powell, J., concurring)).
377. See supra Part V.B.
378. Partners Healthcare Syss, Inc. v. Sullivan, No. 06-11436-JLT, 2007 WL 1810218,
at *3 (D. Mass. June 25, 2007); see also supra notes 238-44 and accompanying text.
379. Partners, 2007 WL 1810218, at *4.
NOLAN. FINAL 1/7/2008 10:24:23 PM
appellate court reviewing this decision should analyze conflict preemption

more narrowly and hold that chapter 151B survives ERISAs preemption
provisions.
VI. CONCLUSION
The judicial reasoning required for the example claimants to succeed
is eminently feasible. A narrow reading of DOMA, consistent with judicial
deference to state constructions of marriage law, will save the employee
benefit plan from being subject to the federal definition of marriage.381 A
claim of discrimination under Massachusetts anti-discrimination law does
not relate to the ERISA-governed plan at issue and should therefore survive
preemption. The claim contains no patent reference to the plan, and it
functions independently of the plan because it does not depend on the
existence of the plan to sustain a cause of action.382 The claim has no
connection to the plan because it has merely an incidental economic impact
on the plan, requires no more or different plan administration than is
presently employed to determine beneficiary status, and does not
undermine ERISAs goals.383
A court reviewing a MCAD decision requiring employers to extend
benefits to all legally married spouses in Massachusetts should employ this
reasoning because such a conclusion is sustainable under state and federal
jurisprudence. Further, this result is perfectly consistent with the intended
scope of ERISAs preemption provision384 and the legislations overall
goals.385
However, in order to posit this reasoning to a court, the MCAD must
be allowed to investigate and advance such a claim.386 The Commission
must first appeal the decision that prevents them from investigating claims
of discrimination in the administration of ERISA-governed employee
benefit plans under state anti-discrimination law.387 If allowed to proceed
with its investigation, the Commission should recognize that the denial of
benefits to same-sex spouses legally married under state law, where their
opposite-sex counterparts are offered benefits, is tantamount to
discrimination based on sexual orientation and is therefore illegal. This
381. See supra Part V.B.

382. See supra Part V.D.1.
383. See supra Part V.D.2.
384. See supra Part I.D.
385. See supra Part I.
386. See Smith v. Bell Atl., 829 N.E.2d 228, 245 (Mass. App. Ct. 2005) (stating that the
anti-discrimination statute requires a claimant to file with MCAD before initiating a
lawsuit).
NOLAN. FINAL 1/7/2008 10:24:23 PM
result is consonant with the MCADs history as a pioneer of protecting

individuals from discrimination based on sexual orientation.388 Further, it is
the proper function and mandate of the Commission389 to protect residents
of the Commonwealth from discrimination and to advance their state law
claims where feasible, irrespective of how novel such claims may appear at
a glance.
In this light, the MCAD should ensure that the example claimants
secure spousal recognition and associated benefits from their employer, for
which they are eligible as legally married spouses, by fighting for the right
to advance the claim under chapter 151B. The Commission has extended
chapter 151Bs protections to homosexual individuals harassed by another
of the same sex, individuals discharged because of their sexual orientation,
individuals who faced retaliatory acts for bringing claims against their
employer based on sexual orientation, and has applied other state laws to
protect transgendered individuals.390 The Commission should proceed in
this spirit to forge new protections for citizens of the Commonwealth in
same-sex marriages. The Commission is uniquely situated to accomplish
this goal and should not hesitate to lend its reasoning and influence to the
plight of individuals who experience discrimination because of their sexual
orientation.

389. See MASS. GEN. LAWS ch. 151B, 3(5) (2004).
390. See supra Part V.A.

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CHIPPING AT THE ICEBERG: HOW

Abstract: This Note examines the preemption provisions of the Employee

* NEW ENGLAND LAW REVIEWS contribution to the American Society of Writers on

110 NEW ENGLAND LAW REVIEW [Vol. 42:109

ERISA preemption issues in light of same-sex marriage in Massachusetts

2007] ERISA PREEMPTION 111

spouses and opposite-sex spouses under state insurance laws.9

9. McClendon, supra note 2, at 106 (describing an analysis by Gay & Lesbian

112 NEW ENGLAND LAW REVIEW [Vol. 42:109

The Massachusetts state anti-discrimination law also bestowed on the

2007] ERISA PREEMPTION 113

I. OVERVIEW OF ERISA PREEMPTION AND STATE LAW

25. McClendon, supra note 2, 107; see 29 U.S.C. 1001-1461 (2000).

114 NEW ENGLAND LAW REVIEW [Vol. 42:109

2007] ERISA PREEMPTION 115

B. The Savings Clause

116 NEW ENGLAND LAW REVIEW [Vol. 42:109

C. The Deemer Clause

D. The Preemption Clause and Its Impact on State Law

2007] ERISA PREEMPTION 117

59. 29 U.S.C. 1144(a) (2000).

118 NEW ENGLAND LAW REVIEW [Vol. 42:109

of conflicting and inconsistent state and local regulations,71 reflecting a

2007] ERISA PREEMPTION 119

However, the Supreme Court has carefully applied the preemption

II. FEDERAL AND MASSACHUSETTS ANTI-DISCRIMINATION LAW

120 NEW ENGLAND LAW REVIEW [Vol. 42:109

for employers with fifteen or more employees.92 The Age Discrimination in

92. 42 U.S.C. 2000e, 2000e-2.

2007] ERISA PREEMPTION 121

circuit courts that Title VII prohibits discrimination based on sexual

122 NEW ENGLAND LAW REVIEW [Vol. 42:109

marriage is otherwise lawful according to the state.111

B. Massachusetts State Protections

2007] ERISA PREEMPTION 123

with six or more employees.123

124 NEW ENGLAND LAW REVIEW [Vol. 42:109

Overall, Massachusetts protects its homosexual residents.134

III. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION: DECISIONS

A. Protection from Discrimination Based on Sexual Orientation

2007] ERISA PREEMPTION 125

because chapter 151B protects individuals against sexual harassment by a

126 NEW ENGLAND LAW REVIEW [Vol. 42:109

rights do not adequately protect the civil rights of Massachusetts citizens.153

2007] ERISA PREEMPTION 127

public accommodation.162 In Cashman v. Zekes, the Commission found a

162. See Cashman, 24 MDLR 323; Barbot, 23 MDLR 317.

128 NEW ENGLAND LAW REVIEW [Vol. 42:109

environment.172 The landlord also refused to furnish adequate services and

B. Protection from Discrimination Extended to Transgendered

2007] ERISA PREEMPTION 129

The Commission noted that such a finding was contrary to most

130 NEW ENGLAND LAW REVIEW [Vol. 42:109

151B and entitled to protection on that basis.186 In Jette v. Honey Farms

C. Reviewing Courts Presume that MCAD Decisions Are Valid.

2007] ERISA PREEMPTION 131

MCAD, as the SJC will uphold the Commissions decision if it rests on

132 NEW ENGLAND LAW REVIEW [Vol. 42:109

IV. ERISAS PREEMPTION CLAUSE AND JUDICIAL APPLICATION: THE

203. See supra notes 148-53 and accompanying text.

2007] ERISA PREEMPTION 133