In McGann v. H & H Music Co., the United States Court of Appeals for the Fifth Circuit enraged AIDS activists and alarmed employees nationwide when it ruled that an employer could effectively "discriminate," albeit indirectly, against employees with life-threatening diseases by decreasing the caps on health benefits to nearly nothing. Recently, the United States Supreme Court denied certiorari in the matter allowing the decisions of the district and circuit courts to stand. This Note analyzes the decision and rationale of the Fifth Circuit. A brief factual background of the case is given, followed by a discussion of the basic requirements of the Employee Retirement Income Security Act of 1974 as it applies to employee benefit plans. The Note then addresses the proper scope, purpose, and effect of Section 510 of ERISA, upon which McGann based his claim. The Note concludes that while the Fifth Circuit's decision may seem viscerally and fundamentally unfair, it would result in far greater unfairness to the majority of the participants of the plan to require plan benefits to vest. Thus, the circuit court's decision was a correct reading of the law, and for the United States Supreme Court to have ruled otherwise would have been an act of judicial legislation. The Note closes by addressing the statutory responses to McGann and the possible effect of the Americans with Disabilities Act upon future similar situations.
Craig C. Dirrim,
Unpopular But Not Unfair: The Fifth Circuit Considers the Terms But Ignores the Endearment in McGann v. H & H Music Co., 946 F.2d 410 (5th Cir. 1991), cert. denied, 113 S. Ct. 482 (1992),
72 Neb. L. Rev.
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