§ 4.3.8 ERISA DISCRIMIN

• Jurisdiction: Arizona

§ 4.3.8 ERISA Discrimination. ERISA Section 510²⁰⁴ prohibits discrimination on three separate bases. First, the statute prohibits any person from taking adverse employment action against a participant or beneficiary for exercising rights to which he or she is entitled under the plan or ERISA. Second, the statute prohibits interference with the attainment of any right to which the participant may become entitled under the plan. Finally, the employer cannot retaliate against an individual for giving testimony or information in an inquiry or proceeding under ERISA. Although there is a circuit split on the issue, the Ninth Circuit finds that the non-retaliation protection applies to unsolicited internal complaints.²⁰⁵

ERISA Section 510 is a specific intent statute. The employee retains the burden of proof throughout the dispute of proving that the employer had the specific intent necessary to establish the statutory violation.²⁰⁶ Although there is an emerging creativity in the use of ERISA Section 510, the courts of appeal have held that ERISA Section 510 was designed to protect the employment relationship, and that a mere incidental loss of benefit resulting from an otherwise unrelated termination is not sufficient to assert a violation.²⁰⁷ The protection is not limited to vested pension benefits and applies in unvested pension and welfare benefits.²⁰⁸

The prima facie case has different elements depending on the nature of the allegedly improper conduct. In termination cases, the prima facie case is remarkably similar to the McDonnell-Douglas/Burdine criteria for Title VII cases. The plaintiff must prove: "(1) prohibited employer conduct; (2) taken for the purpose of interfering; (3) with the attainment of any right to which the employee may become entitled."²⁰⁹ If the plaintiff succeeds in establishing this prima facie case, the burden shifts to the employer to introduce evidence of a legitimate nondiscriminatory reason for its conduct. As in Title VII cases, the employee must then establish that the articulated reason for the action is pretextual.²¹⁰

If the alleged violation is reprisal or retaliation, the employee must prove: (1) he or she engaged in the protected activities; (2) adverse employment action was taken against the individual; and (3) there was a causal connection between the exercise of protected rights and the adverse employment action.²¹¹ If the employee establishes this prima facie case, the burden shifts to the employer to establish that the same decisions would have been made even if the prohibited criteria had not been considered.²¹²

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) added a prohibition on discrimination against individual participants and beneficiaries based on health status.²¹³ Unlike ERISA § 510, the HIPAA anti-discrimination rule directly regulates the content...