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WI OCI Bulletin: Sex Discrimination

Employee Benefits

On Monday, June 29, 2020, the Office of the Commissioner of Insurance in the State of Wisconsin (OCI) issued a bulletin regarding discrimination on the basis of sex in health insurance policies.

This guidance was issued in response to the recent United States Supreme Court decision in Bostock v. Clayton, County, Georgia. The ruling found that discrimination based on sexual orientation or identity in the workplace is discrimination based on sex, which is prohibited by Title VII of the Civil Rights Act of 1964.

In response to that ruling, OCI asserts that it is unlawful to discriminate by excluding, limiting or denying benefits to an insured on the basis of the insured’s gender identity in state of Wisconsin. OCI supports this position with references to state anti-discrimination and insurance statutes and regulatory guidance, as well as recent court opinions.

Because of this position, OCI will not accept any policy form filings from health insurers that contain exclusions or limitations on benefits that are based on a person’s gender identity. In addition, OCI is requiring insurers and self-funded public sector employer health plans to comply with this interpretation for policies currently in effect. Therefore, no fully insured plan or self-funded plan sponsored by a public sector employer can exclude coverage for health treatments that would otherwise be covered based upon gender identity.

Key Takeaway

This bulletin from OCI mandates that all fully insured in the private and public sector and self-funded public sector health plans comply with this rule. Clients would be well-served to work closely with their insurance carriers and/or third party administrators to fully understand their compliance requirements and the financial obligations this could mean for their employer sponsored health plan.

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The information above is a summary of laws and regulations regarding provisions relating to employee benefit plan compliance. The information should not be construed as legal or tax advice. In all cases, employers should be advised to consult with tier accountant or legal counsel for assistance.

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